Ravi Krishan Kapur, J.
1. This is an action for disparagement and infringement.
2. The petitioner is a reputed manufacturer and distributor of Fast Moving Consumer Goods (FMCG). The suit pertains to a hair product
manufactured by the petitioner namely Nihar Naturals Shanti Badam Amla Hair Oil. The respondent is also a well known manufacturer of FMCG
products. The respondent also manufactures hair oil under the mark of Dabur. The respondent manufactures two variants of AMLA HAIR OIL
namely Dabur Amla Hair Oil and New Dabur Amla Hair Oil. Both parties are competitors and trade rivals in the FMCG market.
3. The grievance of the petitioner pertains to the advertisements published in several newspapers having wide circulation all over India by the
respondents both in print and in electronic form which are “Annexure H†and “Annexure I†respectively to this application. The impugned
advertisements, inter alia, contain the following caption “DABUR AMLA DE SHANTI KE MUKABLE (up to) 50% ZYADA MAZBOOT BAALâ€
(in Hindi Language). There is also disclaimer to the advertisement to the effect that “UTPAD NIHAR SHANTI AMLA KE SHABD,
DEVICE/LABEL MEIN TRADEMARK KE ADHIKAR ‘MARICO LIMITED’ KE PASS HAIN. PACK SHOTS UDAHARAN KE LIYE
DIKHAYE GAYE HAIN. VASTVIK PACK KA AKAR ALAG HO SAKTA HA I(Nin âH€indi Language). From the disclaimer it is evident that the
respondent is fully aware that the petitioner is the owner of registered trademark and the lable mark “Niharâ€.
4. It is alleged on behalf of the petitioner that the pictorial impact of the impugned advertisements demeans and disparages the petitioner’s product
and conveys a clear message to the customers that the petitioner’s product are ineffective and useless. In addition, to the false claim of having
50% of more efficacy, the petitioner’s product is also depicted as an unattractive purchase for consumers and does not serve the intended
purpose. It is also alleged that the respondent has falsely claimed that their product i.e. Dabur Amla hair oil when compared to the petitioner’s
product i.e. Nihar Natural Shanti Amla hair oil gives up to 50% stronger hair thereby conveying that, the petitioner’s hair oil is ineffective. Thus, it
is contended on behalf of the petitioner that, the respondent has ex facie rubbished the petitioner’s product by causing the impugned
advertisements to be published.
5. On behalf of the respondent it is contended that, the respondent is entitled to by means of comparative advertising show a competitor’s product
by naming the competitor as long as use of the competitor’s mark is honest. It is further contended that the impugned advertisements constitutes
commercial speech and is protected under Article 19 (1) (a) of the Constitution. Moreover, even under the Advertising Standard Council of India
Guidelines, the respondent is permitted to publish the impugned advertisements. The impugned advertisements are legitimate, honest, truthful, well
substantiated and statistically proven. Hence, the impugned advertisements are permissible in law and do not constitute any disparagement nor infringe
the petitioner’s trademark. The respondent also relies on separate Study Reports which are referred to in the impugned advertisements to contend
justification as a defence to this action.
6. Upon this suit being filed, a Co-ordinate Bench at the ad interim stage had, by an order dated 27 December, 2021 inter alia held as follows :
“In view of the aforesaid, as the publication of the advertisement was done on 24th December, 2021, the petitioner has approached
immediately before this Court to consider the urgency.
The defendant/respondent is restrained from publishing the advertisement in pages 67 to 74 of the petitioner without the leave of this Court
in any manner whatsoever from printing or disseminating or telecasting or broadcasting or publishing or otherwise communicating to the
public or from making available the impugned advertisement or any part thereof or any other advertisement of a similar nature in any
language till further orders of the Court.
The defendant/respondent will be at liberty to apply for vacating and/or modifying the order.â€
7. The matter was taken up for hearing after filing of affidavits.
8. The principles of law of disparagement have been well settled in Reckitt & Colman of India Ltd. Vs. M.P. Ramchandran reported in (1999) 19
PTC 741, wherein a Learned Judge of this Court had held as follows:
I) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue.
II) He can also say that his goods are better than his competitors', even though such statement is untrue.
III) For the purpose of saying that his goods are the best in the world or his goods are better than his competitors' he can even compare the
advantages of his goods over the goods of others.
IV) He however, cannot, while saying that his goods are better than his competitors', say that his competitors' goods are bad. If he says so,
he really slanders the goods of his competitors. In other words he defames his competitors and their goods, which is not permissible.
V) If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defermation an action lies
and if an action lies for recovery of damages for defamation, then the Court is also competent to grant an order of injunction restraining
repetition of such defamation.
The aforesaid principles have been approved of, reiterated and consistently followed by different Courts and have stood the test of time [see Heinz
India Private Limited Vs. Glaxo Smithkline Consumer Healthcare Limited & Ors. reported in 2009(2) CHN 479, Dabur India Ltd. Vs. Wipro Limited
Bangalore (2006) 32 PTC 677 (Del) at Para 22, Pepsi co. Inc. Vs. Hindustan Coca-cola Ltd. 2003 (27) PTC 305 (Del) at Paras 17 & 18 and Reckitt
& Colman of India Ltd. v. Kiwi T.T.K. 1996 PTC (16) 393 at Para 11].
9. In this background, this Court has to consider whether the impugned advertisements disparage the product of the petitioner. A balance has to be
struck by an advertiser merely trying to promote its product but not being permitted to brand a competitor’s product as bad. In other words an
advertiser cannot while saying that his goods are better than his competitors', say that his competitors' goods are bad. If he says so, he really slanders
the goods of his competitors. In other words he defames his competitors and their goods, which is not permissible. Hence, the question is whether the
Laxmanrekha or Rubicon has been crossed or not?
10. Normally, advertisements by their very nature are taken to be exaggeration by reasonable people. An amount of hyperbole is to be expected in the
description of goods, property and services in advertisements. Thus, such advertisements ought to be taken with a pinch of salt.
11. Comparative advertising is a modern day reality. It has become a strategy now commonly deployed in the advertising and marketing world. Such
advertisements constitute commercial speech and are protected under Article 19(1)(a) of the Constitution of India [Horlicks Vs. Heinz 2019(77) PTC
45 at Paras 28-31]. Chapter IV of the Advertising Standards Council of India Code also permits comparative advertisements which includes naming
competitors in advertisements. Such advertisements are recognized to be in the interests of competition and public enlightenment. Generally, a certain
amount of disparagement is implicit in such advertisements as long as the advertisement is only limited to puffing. However, comparative advertising
cannot be permitted to be a means to name and shame a rival’s products. In the decision of Reckitt Benckiser India Private Limited Vs.
Hindustan Unilever Limited (2021) 88 PTC 584 it has been held that: “In comparative advertising, the comparing of one’s goods with that of
the other and establishing the superiority of one’s goods over the other is permissible. However one cannot make a statement that a good is bad,
inferior or undesirable as that would lead to denigrating or defaming the goods of the other.†Similar views have also been expressed in the following
decisions Glaxosmithkline Consumer Healthcare Ltd. v. Heinz India (P) Ltd., 2010 SCC OnLine Del 3932 at Para 25 and Colgate Palmolive Company
v. Hindustan Unilever Ltd., 2014 (57) PTC 47 [Del] at Para 27.
12. In my view, the impugned advertisements are more than puffery. There is a clear reference to the product of the petitioner in each of the
advertisements. The impugned advertisements give an impression that the petitioner’s product is inferior and bad in comparison to the
respondent’s product. The overall message which the respondent has tried to convey through the impugned advertisements is that the
petitioner’s product does not serve the purpose which it is intended to serve. The pictorial representation in the impugned advertisements suggests
that the petitioner’s product Nihar Naturals Shanti Amla Hair Oil is ineffective, unattractive and useless. Accordingly, I find that the impugned
advertisements disparage and rubbish the product of the petitioner.
13. Insofar as the plea of justification is concerned, prima facie at the interlocutory stage, to permit a party to rely on such self-serving reports would
cause irreparable injury and detriment to the party against whom such advertising is resorted to. The Court cannot at this stage of the proceedings be
reduced to a machinery for determination of rival advertisements of which of the two products are better. The defence of justification can only be
established at the time of trial. The proof of falsity cannot be decided at the interlocutory stage. In Armstrong vs. Armit (1886) 2 T.L.R at page-890 it
was held that “It would be exceedingly difficult upon affidavits to try whether the privilege has been exceeded. That is a matter which must depend
upon the character and demeanour of the witnesses, the way in which they stand cross-examination, and a variety of other circumstances, and which
it is obvious that judges with only affidavits before them are wholly inadequate to determine with any certainty or advantage.†Accordingly, there is
no question of giving any weightage to any of the Reports relied on by any of the parties or to enter into the merits of the defence of justification at
this stage of the proceeding [See Reckitt Benckiser India Private Limited Vs. Hindustan Unilever Limited (2021) 88 PTC 584 at Para 26 and Reckitt
Benckiser India Private Limited Vs. Hindustan Unilever Limited, Unreported decision of the High Court at Delhi dated 25 November, 2021 in
FAO(OS)(COMM) 149/2021 at Para 34].
14. The respondent had during the course of the hearing offered to modify the impugned advertisements in the manner morefully depicted in
Annexures ‘A’ and ‘B’ of the supplementary affidavit filed on behalf of the respondent affirmed on 1 March, 2022. This suggestion was
not accepted by the petitioner. The parties did attempt to justify their respective stands. However, in view of the fact that the modified advertisement
was unacceptable to the petitioner and beyond the scope of the suit, I choose not to enter into the merits or demerits of the modified advertisement.
15. In view of the aforesaid, I am satisfied that the petitioner has a strong prima facie case on merits. The balance of convenience and irreparable
injury is also in favour of orders being passed as prayed for herein. Hence, there shall be an order in terms of prayer (a) of the Notice of Motion. It is
however made clear that the order of restraint is only limited to the impugned advertisements. It is also clarified that the order of restraint is not
restricted to any particular portion of the impugned advertisements but to the impugned advertisements as a whole. Accordingly, GA 1 of 2021 stands
disposed of. GA 2 of 2021 is an application for vacating the ex parte order dated 27 December, 2021. Since the interlocutory application is being
finally disposed of, GA 2 of 2021 stands disposed as infructuous.
