India: Beyond Facade…

In the battle to acquire higher market shares, advertising and marketing strategies seem to play a key role. While catching the ‘Consumer’s Eye’ is the primary objective, portrayal of competitive brands as the ‘inferior lot’, is perhaps the easiest and most sought after strategy. The present Intellectual Property Laws in this concern do address felonies such as copyright infringement, piracy of designs, replication of trademarks and the like, but as far as comparative advertising goes, the laws have little to say. The most recent battle in this regard involving Dabur India Ltd, and Wipro Sanjivini, throws light on this very issue.

The plaintiff, Dabur India Ltd under its trademark ‘Dabur’ is involved in manufacturing and marketing of pharmaceuticals, Ayurvedic medications, toiletries and other associated products. Dabur Honey one of its most popular commodities earns the company a profit of about Rs. 50 Crores alone and incurs about Rs. 3.4 Crores as promotional and marketing expenses. This claims to hold over 50% of the market-share. Whereas the defendants, Wipro markets Honey produced by them under the brand name Wipro Sanjivani.

In the instant case, the plaintiff claimed that the defendant began advertising the product with a view to disparage and denigrate their product. Plaintiff contended that the visual impact and voice-over in the commercial by defendant indicating that a bottle purchased by a consumer remains as such for over two years while that bought by another is consumed in no time and that the design of this bottle is similar to that of the plaintiff’s. In this regard, photographs and a CD containing the commercial were produced in the Court.

The plaintiff under Order 39, Rules 1 and 2 of the CPC, prayed for an injunction restraining its rival Wipro Ltd. Bangalore, from telecasting the impugned ‘Wipro Sanjivani Honey’ commercial. This interim ex parte was granted vide an order passed in January 2006.Wipro since filed for vacating the ex parte injunction.

The plaintiff contended that they held registration for the bottle’s distinctive shape and design under the Designs Act. The use of a similar prop in the advertisement was held to possibly create an impression of the same being plaintiff’s product, in the mind of an unwary customer. It was also contended that a poor impression regarding the quality of their product was likely to be created and such a disparaging insinuation was sufficient to injunct the defendant. During the pleadings, defendant proposed to replace the two-year period of non-consumption, and leave such time-period unspecified but the plaintiff held this unacceptable.

Referring to the decision pronounced in Reckitt and Colman of India Ltd v. M.P. Ramachandran and Anr, 1999 PTC (19), the Court held that an advertiser could state his goods to be better than his competitors but cannot make any contentions of the inferior quality of his competitor’s goods, which would amount to slandering or defamation. It was held that in the absence of derogatory action, no action would lie against the advertiser. In yet another Reckitt and Colman suit, against Kiwi T.T.K Ltd., (cited as 1996 PTC (16) 393.), the general principle was held to be injunction of the advertiser from publishing and circulating an article in case the dominant motive was to injure reputation. The decision held that comparative advertising was permissible in the absence of disparage or defamation of the competitor’s product. The Court also referred to the law point highlighted in Pepsi Co. Inc. and Ors. v. Hindustan Coca Cola Ltd. and Anr 2003 (27) PTC 305 (Delhi) (DB). Herein, intent, manner and storyline of the commercial were held to be the criteria to decide if disparagement did take place.

The Court also referred to other Dabur litigations against rivals Emami Ltd. and Colgate Palmolive. Reinstating Reckitt Benckiser V. Nanga Ltd. and Ors. 2003 (26) PTC 535 (Delhi), the court held that its concern here did not lie in the truth of the advertisement, but in the possibility of defamation arising of the same.

The defendants took aid of Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd, AIR 1995 SC 2438 to contend that advertising was in fact ‘Commercial Speech’, protected under Art.19 (1)(a) of the constitution. The Court held this to be a far-fetched argument, since the advertiser could not be given the liberty to defame under the umbrella of advertising.

The Court held that the intent of defendant’s commercial lay in suggesting superiority to its competitor’s product and that no denigration took place. They held that in the course of comparative advertising, the advertised product would but naturally be exhibited as superior. The plaintiffs in response objected on the grounds of similarity in design and obviousness. The defendant, to this contention relied on the fact that this was shown for a fleeting moment, after which an unidentifiable bottle was shown. They contended that their intention lay in projecting superiority and that even if insinuation existed, there was nothing wrong as long as it did not amount to defamation.

Vacating the injunction order, the courts held that parties ought not to be hypersensitive and should allow market forces to play a stronger role than advertising. While the concepts and law governing designs, trademarks and copyrights shall continue to subsist, it seems that the ad-world will have to move beyond these.

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