Dabur India Limited ("Plaintiff") had brought about a suit for grant of injunction against telecasting, broadcasting and publishing five advertisements by Shree Baidyanath Ayurved Bhavan Pvt. Ltd ("Defendant/ Respondent") via all electronic mediums, TV Channels and other print media. With the trend of comparative advertising, and the need to secure honest trade practices and healthy competition in market, the verdict of Hon'ble High Court underscored the doctrines governing trade mark disparagement and limitations of freedom of speech in an advertisement.1
Dabur India Limited (referred to as "Plaintiff") is a company incorporated in India and a leading manufacturer in Ayurvedic and Natural Health Care products. The Plaintiff has been manufacturing and selling the well-known ayurvedic preparation "Dabur Chyawanprash" in India for several years.
Shree Baidyanath Ayurved Bhavan Pvt. Ltd (referred to as "Defendant") is a company established in 1917, and a pioneer of heath care and herbal treatment with backing of modern science and technology. The Defendant has been identified for many of its ayurvedic products including "Chyawanprash".
Facts of the case
The Defendant had launched 5 commercial advertisements wherein it claimed that its "Chyawanprash" is a mixture of qualities of 52 herbs, whereas its rival has only 42 ingredients:
- Advertisement No. 1 released by the Defendant
claimed that the "ordinary Chyawanprash" contained only
"42 herbs" whereas the Defendant's product contained
"52 herbs". Screenshot of the advertisement is copied
- Advertisement No. 2 claimed that while
"other Chyawanprash" use a mixture of vegetable oil and
ghee, the Defendant's Chyawanprash contains only "100%
pure desi ghee". It further stated that "ordinary
Chyawanprash" contained only "42 ingredients" while
the Defendant's product contains complete "52 ayurvedic
ingredient". Screenshot of the advertisement is copied
- Advertisement No. 3 stated that the
"complete Chyawanprash" is one which is formulated as per
correct formulation and claimed that the Defendant's product is
made with the traditional recipe, with 52 ingredients and 100% pure
desi ghee, while the "other Chyawanprash" contained a
mixture of vegetable oil and ghee and contained only 42
ingredients. Screenshot of the advertisement is copied below:
- Advertisement No. 4 released by the Defendant
on national television did not make any claims in respect of the
number of ingredients present in its products in comparison with
the "other Chyawanprash":
- Advertisement No. 5 is a full- fledged video
advertisement, wherein a husband walks into the living room with a
bag containing grocery items in his hand, and when his wife takes
out the bottle of Chyawanprash from the grocery bag, she is shocked
to see that the label reads "Chyawanprash 42 ingredients'
and is disappointed to see that her husband has bought ordinary
"Chyawanprash" with only "42
During the course of the advertisement, the wife questions the choice of the husband in purchasing the "Chyawanprash" with only "42 ingredients", and goes on to say that to prevent illness and "win", one needs the power of total "52 Ayurvedic ingredients" and not just 42 ingredients, declaring that the Defendant's Chyawanprash is the one which is made with centuries old and complete Ayurvedic recipe.
CONTENTIONS OF THE PARTIES
The Contentions of the Plaintiff:
To this end, the Plaintiff submitted that:
- As per the Drugs & Cosmetics Act, 1940, no Chyawanprash in the market contains only 42 ingredients, and in fact, the minimum number of ingredients required is 47 as per various Ayurvedic texts. However, the Dabur's Chyawanprash advertises "more than 41 ingredients", which has been clearly identified and targeted by the Defendant.
- The Plaintiff's product uses "til oil" (sesame oil) alongwith ghee, and "vegetable oil", which has been mischievously used by the Defendant in its advertisement, with the colour scheme of bottle of "ordinary Chyawanprash" being similar to that of the Plaintiff's product.
- The Plaintiff owns 63% of the market share and was primarily targeted by the Defendant's advertisements to persuade the customers to shift from the Plaintiff's product to that of the Defendant.
- That the Defendant's advertisements have caused generic disparagement to the entire class of "Chyawanprash" and had made untruthful comparison by exploiting the lack of customer's knowledge.
- The Defendant misleadingly implies that its "Chyawanprash" is complete whereas "other Chyawanprash" are incomplete, and therefore the impugned advertisements are misleading and false.
The Contentions of the Defendant:
The Defendant based their arguments on the right to freedom of speech and expression guaranteed under Article 19 (1) (a) of the constitution, stating that:
- The Defendant's advertisement and right to commercial speech is a part of the freedom of speech and expression.
- The comparison between the products is allowed and it is for the advertiser to state that its product is best, and the same does not constitute disparagement.
- The Plaintiff being a major market share holder cannot restrain others from advertising their products, by claiming that they would be an obvious target of such advertisements.
- The Defendant's advertisements make a comparison of its own product with an unnamed fictitious product and its focus is on highlighting the benefits of its own products rather than focusing on the other product.
Court's Observations and Order
While deciding if the Defendant's advertisements were disparaging the Plaintiff's product, the Hon'ble High Court referred to various judgments cited by both parties and relied upon the following grounds which are imperative to the issue at hand:
- Comparing the qualities of one's product with those of another is only permitted if it is in the nature of a 'puff', but a comparison in the nature of "GoodBad" is not allowed;
- A trader should not be permitted to advertise facts, data, figures and deficiencies of the products of another, especially a rival, either directly or indirectly;
- Generic disparagement of a rival's product (i.e., without specifically identifying or pin pointing the rival product) would still be objectionable;
- If an advertisement gives out an impression that a rival product has a defect or demerit (which is not true) then such impression would make it disparaging;
- An advertisement should be "comparison positive" and any message which is slanderous or indiscriminate should be "comparison negative "and should be restricted by the Court;
- Some leeway has to be given to an advertiser, but at the same time, right to free speech cannot be stretched to allow them to become defamatory, disparaging or denigrating.
On the basis of the same, the Court held that:
- Advertisement No. 1 suggested that "ordinary Chyawanprash" are incomplete or deficient and therefore, it falls under the ambit of "negative comparison" as it portrays the Plaintiff's product as incomplete and ordinary, and the same was permanently injuncted.
- Advertisement No. 2 referred to "other Chyawanprash" (which includes the Plaintiff's Chyawanprash) as ordinary as the same contains only 42 ingredients. Thus, if the comparison of 42 ingredients is removed, then the advertisement is not disparaging.
- With regard to Advertisement No. 3, the declaration that the Defendant's product is "complete" as it contains 52 ingredients and is made with 100% pure desi ghee, would not be disparaging as it is true. However, the comparison of 42 ingredients is based on false statements and thus, it is disparaging. Therefore the advertisement, in its present form, is injuncted. However, this advertisement may be displayed after removal of the reference to "42 ingredients".
- With regard to Advertisement No. 4, there was no negative comparison between the two products, and therefore, the same was not injuncted.
- Advertisement No. 5 deceives, manipulates, or is likely to deceive or manipulate the consumer. A bottle highlighting 42 ingredients and labeled as "Chyawanprash" is shown in the Defendant's advertisement. Under Section 3(a) of the Drugs & Cosmetics Act, 1940 and as agreed by both parties, there can be no Chyawanprash available in the market with 42 ingredients. The very statement that Chyawanprash is available in the market with "42 ingredients" is a mischievous and false statement that would create confusion in the minds of the general public. Thus, the said advertisement was permanently injuncted. However, if advertisement was modified to remove reference to "42 ingredients", the advertisement can be permitted to be shown on television, social media and other platforms.
The Courts have time and again adjudicated upon the matters of disparagement and usage of commercial speech to determine the rights of the parties and promote healthy competition in the market.
The Courts have also highlighted that the freedom to commercial speech branching from Article 19(1)(a), may be creative, engrossing and have an engaging storyline, however, it cannot be allowed to extend its ambit to allow the defamation, disparagement and denigration of a competing product. However, true statements can be made even if it denigrates a rival's product, but false and misleading statements cannot be allowed under the guise of free speech.2
In the present matter, the Hon'ble Court has based its reasoning on the precedents cited by both parties and held that the advertisement to the extent of disparagement and / or any false or misleading statements, shall be injuncted. Thus, some of the Defendant's advertisements were allowed to be advertised on television, social media and other platforms, after the removal of disparaging parts, thereby striking a balance between the rights of the two parties.
Titiksha Sinha, Associate Advocate at S.S. Rana & Co. has assisted in the research of this Article.
1 Dabur India Limited v Shree Baidyanath Ayrved Bhavan Pvt. Ltd. (C.S. No. 232/2022)
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