S.No.,Earlier,Modification
1.,Savdhan,"“Zara Sochiyeâ€/ “Dhyan
Dijiyeâ€
2.,"Anya uplabd Chyawanprash ke
brands main 50% se zyada chini
hai. Aaj ki jeevan shaili main Cheeni
ki adhikta hanikarak ho sakti hai","Chyawanprash main 50% se zyda
chini hai.
the said TVC with a bottle of Green and Yellow ion colour. Furthermore, the Defendant shall also remove the word “Baaki†from the voiceover",,
in the said TVC at page 16 of the Note dated 25.04.2019 only as an interim measure during the pendency of the captioned Suit. For avoidance of any,,
doubt, please find attached the said TVC which the Defendant shall modify as described above annexed as Document II.",,
6. The Defendant shall also continue to run the TVC mentioned at page 48 to 49 of the note dated 25.4.2019 filed by the Plaintiff, in addition to the",,
above. It is stated that the Defendant shall increase the intensity of the colour scheme of bottle shown in the said TVC at page 48-49 so that it looks,,
more like a green and yellow bottle. Please find attached the said TVC annexed which the Defendant shall modify hereto as Document III.,,
7. The Defendant undertakes not to publish the above mentioned TVCâ€s without making the modifications as set out hereinabove.â€,,
5. Noticing this categorical stand of the Defendant, the matter was then listed for directions on 28th May 2019. On the said date, Mr. Singh reiterated",,
that the modifications suggested by the Defendant do not address the grievance of the Plaintiff and the proposed amendments are also liable to be,,
impugned. However, on 31st May 2019, as directed, the Plaintiff filed an additional response/written submissions to the affidavit dated 14th May 2019.",,
6. In view of the above, it is evident that during the pendency of the present suit, the Defendant has undertaken not to publish the print advertisement",,
or the TV Commercial except in the modified form. Thus, at this stage, the Court is only required to appraise the proposed modified advertisements as",,
suggested in the affidavit. The order/injunctions granted in the applications under consideration that are in force are only ad-interim injunctions and,,
express a prima facie view. The same are pending final adjudication and are now being finally disposed of by this common order.,,
Facts in Brief,,
7. The present suit is for permanent injunction restraining the Defendants, its directors, associates, assignees in business, sister concerns, distributors,",,
dealers, stockiests and agents from broadcasting, printing and publishing the ZANDU CHYAVANPRASHAD advertisements, in any electronic or",,
print media or in any manner which is disparaging and injurious to the goodwill and reputation of Chyawanprash which includes Plaintiffâ€s DABUR,,
CHYAWANPRASH. Further, the Plaintiff is also seeking a permanent injunction against the Defendant from using the Plaintifâf€s registered",,
trademark DABUR CHYAWANPRASH or any other similar trademark which may amount to infringement of the Plaintiâf€fs registered trademark.,,
Plaintiff as well as the Defendant both sell the traditional “Chyawanprashâ€. Both of them also have sugar-free variants. Plaintiff sells it under the,,
name of “Chyawanprakash†and the Defendantâ€s product is “Chyavanprashadâ€,,
8. The gravamen of the Plaintiff concerns the print advertisement and TVCs of the Defendant which are reproduced herein below:-,,
Print advertisement,,
Television Commercial (story board 1),,
Television Commercial (story board 2):,,
9. Mr. Hemant Singh, learned Counsel for the Plaintiff argued that the Defendanât€s product depicted in the advertisement is meant for diabetic",,
patients. The Defendant is not comparing its sugar free Chyavanprashad with other like products, but is instead, comparing it with non-diabetic",,
traditional Chyawanprash. The Defendant is thus mischievously comparing different categories of products as comparables which is not permissible in,,
law. It is further urged that the Defendant is misleading and misrepresenting to the consumers that Chyawanprash is harmful, even to non-diabetic",,
consumer which is a false statement. The Defendantâ€s advertisement nowhere discloses that its product is for diabetic patients. Therefore the entire,,
campaign of the Defendant is a misrepresentation of facts, misleading, malicious and disparaging. The intent of the impugned advertisements is to",,
demean and disparage Chyawanprash as a category of product. The Plaintiff has provided details of the ingredients which are required to make,,
Chyawanprash in Ayurvedic recipe. The use of various herbs including amla to manufacture Chyawanprash requires high quantity of sugar to make,,
the product palatable, otherwise it will be too sour or bitter to be consumed. Mr. Singh has also placed reliance on the affidavit of Dr. J.L.N Shastri",,
who has confirmed that Chyawanprash is not harmful. Chyawanprash is prescribed in Ayurveda for enhancing immunity apart from other uses by,,
physicians and hence cannot be considered as harmful. Chyawanprash is not like a Cola drink where the whole bottle is consumed by a consumer on,,
purchase. The prescribed dosage of Chyawanprash is merely 2 tea spoons a day which is not harmful. Further, it was argued that the issue of",,
disparagement is should be ascertained by taking into account the factors laid down by this Court and as well as the Supreme Court. The Defendant's,,
impugned advertisements fall foul of all those requirements. To support his case, Mr. Hemant Singh has strongly relied upon the following judgements:",,
• Dabur India Limited v. Emami Limited (2004 (29) PTC1 (Del)),,
• Hindustan Unilever Ltd. vs. Gujarat Co operative Milk Marketing Federation Ltd. & Ors. ((2017) 71 PTC 396 (Bom)),,
• Dabur India Limited v. Colgate Palmolive India Ltd. 2004 (29) PTC 401 (Del)),,
• Pepsi Co., Inc & Ors. vs. Hindustan, Coca Cola Ltd. &Anr. (2003 (27) PTC 305 (Del))",,
• Reckitt Benckiser (India) Pvt. Ltd. v. Gillette India Ltd. (2016 (68) PTC 67 (Del)),,
• Gillette India Limited v. Reckitt Benckiser (India) Private Limited (2018 SCC Online mad 1126),,
Case of the Defendant,,
10. On the other hand, Mr. Bhandari argued that the Plaintiff has miserably failed to make out a case for interim injunction. The Defendant vide its",,
advertisements only intends to inform the public at large, the availability of a sugar-free Chyawanprash. The advertisement of the Defendant aims at",,
informing the sugar conscious consumers that all conventional or traditional chyawanprash has sugar content and the product of the Defendant does,,
not have any sugar. The advertisement nowhere depicts that intake of sugar is bad for health. The said advertisement only provides an option to,,
buyers who want to avail the benefits of chyawanprash without sugar.,,
11. It is further argued that Plaintiff herein itself manufactures and sells a sugar free version of Chyawanprash known as ""Dabur Chyawanprakash""",,
with the tagline ""goodness of Chyawanprash with no added sugar"" thereby implying that one can enjoy the benefits of Chyawanprash even without",,
sugar. Mr. Bhandari points out that infact, the Plaintiff itself had used various advertisements to promote other products like Honey by highlighting",,
negative effects of sugar on our body. Thus, the impugned advertisement in no manner tarnishes /disparages/ slanders the product of the Plaintiff.",,
12. It is also argued that the Defendant in its advertisements nowhere tends to disparage Chaywanprash, since the Defendant itself manufactures and",,
sells Chyawanprash which contains sugar. Disparaging the category of ""Chyavanprash"" as a whole would also have an adverse affect on the",,
Defendantâ€s own brand- Zandu Chyavanprashad.,,
13. The learned counsel for the Defendant has relied on the following judgements to elucidate the law on disparagement:,,
• Reckitt & Colman of India Ltd. v. M.P. Ramchandran & Anr. 1998 SCC Online Cal 422,,
• Marico Limited v. Adani Wilmar Ltd. 2013 SCC Online Del 1513,,
• Dabur India Ltd. v. M/s Colortek Meghalaya Pvt. Ltd. 2010 SCC Online Del 391,,
• Havells India Ltd & Anr. v. Amritanshu Khaitan 2015 SCC Online Del 8115,,
• Colgate Palmolive Company & Anr. v. Hindustan Unilever Ltd. 2013 SCC Online Del 4986,,
• Horlicks Ltd 85 Anr v. Heinz India Private Limited 2018 SCC Online Del 12975,,
14. Mr. Bhandari urges that assuming arguendo, the first impugned advertisement and TVC are disparaging, the modified advertisements and TVC",,
surely cannot be held to be disparaging by any stretch of imagination.,,
Reasoning and Analysis,,
15. Before evaluating the rival contentions of the parties, it would be apt to reflect on the law relating to comparative advertising, which has been",,
explicated in several judgments of this Court. While doing so, it would suffice if reference is made to just a few. This Court in Havells India Ltd. v.",,
Amritanshu Khaitan, (2015) SCC Online Delhi 8115, has held as under:",,
“24. In Mc Donalds Hamburgers Ltd. v. Burgerking (UK) Ld. [1987] F.S.R. 112 followed in Glaxosmithkline Consumer Healthcare Ltd. v. Heinz,,
India (supra), it has been held that advertisements are not to be read as if they are some testamentary provision in a Will or a clause in some",,
agreement with every word being carefully considered and the words as a whole being compared. In Marico Ltd. v. Adani Wilmar Ltd. CS (OS) No.,,
246/2013 it has been held that in determining the meaning of an advertisement, the Court has to take into account the fact that public expects a certain",,
amount of hyperbole in advertising and the test to be applied is whether a reasonable man would take the claim being made as one made seriously.,,
IN COMPARATIVE ADVERTISING, A CERTAIN AMOUNT OF DISPARAGEMENT IS IMPLICIT",,
36. A comparison, which is unfavourable to a competitor, does not necessarily mean that it is dishonest or unduly detrimental. A Division Bench of this",,
Court in Colgate Palmolive Company v. Hindustan Unilever Ltd., 2014 (57) PTC 47 [Del] (DB] has held that in comparative advertising, a certain",,
amount of disparagement is implicit and as long as the advertisement is limited only to puffing, there can be no actionable claim against the same. The",,
relevant portion of said judgment reads as under:-,,
“27. The law relating to disparaging advertisements is now well settled. While, it is open for a person to exaggerate the claims relating to his goods",,
and indulge in puffery, it is not open for a person to denigrate or disparage the goods of another person. In case of comparative advertisement, a",,
certain amount of disparagement is implicit. If a person compares its goods and claims that the same are better than that of its competitors, it is implicit",,
that the goods of his competitor's are inferior in comparison.,,
To this limited extent, puffery in the context of comparative advertisement does involve showing the competitor's goods in a bad light. However, as",,
long as the advertisement is limited only to puffing, there can be no actionable claim against the same…..â€",,
37. The judgment of Glaxosmithkline Consumer Healthcare Ltd. (supra) relied upon by learned counsel for plaintiffs is clearly distinguishable as in that,,
case the plaintiffs product had been called 'cheap' by the defendant, which expression was held to denigrate and disparage plaintiffs product. It is",,
settled law that an advertiser can call his product the best, but at the same time, cannot rubbish the products of a competitor.",,
COMPETITORS CAN CERTAINLY COMPARE BUT CANNOT MISLEAD,,
38. In the opinion of this Court, the purpose of the provisions irf the Act, 1999 and the ASCI Code which lists the conditions under which comparative",,
advertising is permitted is to stimulate competition between suppliers of goods and services to the consumer's advantage, by allowing competitors to",,
highlight objectively the merits of the various comparative products while, at the same time, prohibiting practices which may distort competition, be",,
detrimental to competitors and have an adverse effect on consumer choice.,,
39. This Court is of the view that it is duty bound to interpret the Act, 1999 and the CJ ASCI Code in a sense favourable to comparative advertising",,
while at the same time always ensuring consumers are protected from possibly misleading advertising.,,
48. In the opinion of this Court, it is open to an advertiser to highlight a special feature/characteristic of his product which sets it apart from its",,
competitors and to make a comparison as long as it is true. For instance, if a chocolate biscuit manufacturer issues a comparative advertising",,
highlighting that his product has the highest chocolate content and the lowest price, then in the opinion of this Court the rival manufacturer cannot seek",,
an injunction on the ground that fibre content or calorific value or protein content had not been compared.,,
49. In other words, it is open to an advertiser to objectively compare one or more material, relevant, verifiable and representative feature of the goods",,
and services in question which may include price. There is no requirement in law to disclose each and every factor/characteristic in comparative,,
advertisement. No reasonable observer would expect one trader to point to all the advantages of its competitor's business and failure to do so does not,,
per se take the advertising outside what reasonable people would regard as 'honest'.â€,,
16. Another notable case dealing with comparative advertising is Reckitt & Colman of India Ltd. v. M.P. Ramchandaran & Anr 1998 SCC Online Cal,,
422, wherein it has been held as under:-",,
“11. From the law discussed above it appears to me that the law on subject is 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 defamation 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.â€,,
17. It would also be essential to note the relevant provisions of the code of Advertising Standards Council of India (ASCI) which read as under:-,,
“Chapter I,,
1.4. Advertisements shall neither distort facts nor mislead the consumer by means of implications or omissions…………..,,
1.5. Advertisements shall not be so framed as to abuse the trust of consumers or exploit their lack of experience or knowledge. No advertisement,,
shall be permitted to contain any claim so exaggerated as to lead to grave or widespread disappointment in the minds of consumers.""",,
Chapter IV,,
To ensure that Advertisements observe fairness in competition such that the Consumer's need to be informed on choice in the Market-Place and the,,
Canons of generally accepted competitive behavior in Business are both served.,,
1. Advertisements containing comparisons with other manufacturers or suppliers or with other products including those where a competitor is named,",,
are permissible in the interest of vigorous competition and public enlightenment provided:,,
(a) It is clear what aspects of the advertiser's product are being compared with what aspects of the competitor's product.,,
(b) The subject matter of comparison is not chosen in such a way as to confer an artificial advantage upon the advertiser or so as to suggest that a,,
better bargain is offered than is truly the case.,,
(c) The comparison are factual, accurate and capable of substantiation.",,
(d) There is no likelihood of the consumer being misled as a result of the comparison, whether about the product advertised or that with which is",,
compared.,,
(e) The advertisement does not unfairly denigrate, attack or discredit other products, advertisers or advertisements directly or by implication.â€",,
18. Chapter IV of the ASCI Code deals with comparative advertising. The relevant portion of the said Code reads as under:-,,
“CHAPTERIV,,
To ensure that Advertisements observe fairness in competition such that the consumer's need to be informed on choice in the marketplace and the,,
canons of generally accepted competitive behavior in business is both served.,,
4.1. Advertisements containing comparisons with other manufacturers or suppliers or with other products including those where a competitor is,,
named, are permissible In the interest of vigorous competition and public enlightenment provided:",,
(a) It is clear what aspects of the advertiser's product are being compared with what aspects of the competitor's product.,,
(b) The subject matter of comparison is not chosen in such a way as to confer an artificial advantage upon the advertiser or so as to suggest that a,,
better bargain is offered than is truly the case.,,
(c) The comparison are factual, accurate and capable of substantiation.",,
(d) There is no likelihood of the consumer being misled as a result of the comparison, whether about the product advertised or that with which is",,
compared.,,
(e) The advertisement does not unfairly denigrate, attack or discredit other products, advertisers or advertisements directly or by implication.â€",,
19. The words “advertising†and “comparative advertising†have also been defined in the Advertising Directive of EEC. In terms of Articles,,
2(a) of the said Directive, advertising means ""the making of a representation in any form in connection with a trade, business, craft or profession in",,
order to promote the supply of goods or services"". Comparative advertising is defined in Clause 2(c) of the said Directive as ""any advertising which",,
explicitly or by implication identifies a competitor or goods or services offered by a competitor"".",,
20. In view of the afore-noted provisions and the case laws, there cannot be any dispute that comparative advertising is permissible in law. There are",,
however certain guidelines that the Courts have recognized when it comes to comparison of competiting products.,,
21. On this issue, the following observations of the Court in Reckitt Benckiser (India) Pvt. Ltd. v. Gillete India Ltd. (2016 (68) PTC 67 (Del)) are",,
noteworthy:,,
“48. Nonetheless what is important is that such commercial speech should not be false, misleading, unfair, deceptive and which proposes illegal",,
transactions. Explaining the aforesaid concept, the Supreme Court in Colgate Palmolive Company & Anr. (Supra) observed that commendatory",,
expressions may not be serious representations of fact and some latitude is given in the field of advertising for gaining customers. The difficulty in,,
identifying the borderline of permissible assertion in such advertisements which more often than not may not be discernible, was also admitted.",,
49. A Division bench of this Hon'ble Court in Dabur India Ltd. (Supra) summarized the law and the guiding principles as hereunder:,,
i) An advertisement is commercial speech and is protected by Article 19(1) (a) of the Constitution.",,
(ii) An advertisement must not be false, misleading, unfair or deceptive.",,
(iii) Of course, there would be some grey areas but these need not necessarily be taken as serious representations of fact but only as glorifying one's",,
product.""",,
50. To the above extent, such advertisements would have the protection of article 19(1)(a); but any venture outside the permissible limits of puffery",,
would surely be in the realm of false, misleading, unfair and deceptive representation and may not be entitled to any constitutional protection.â€",,
22. Keeping the aforenoted principles in mind, which appear in all the judgments dealing with question of disparagement by comparative",,
advertisement, the Court shall now proceed to critically analyze whether in the present case, the Defendant should be restrained from carrying on with",,
the impugned print advertisement and the TVC in the modified form as suggested in the affidavit dated 14th May 2019.,,
Whether the Defendant, while advertising its product, can be permitted to compare its sugar free variant Chyavanprashad with the Chyawanprash",,
which contains sugar?,,
23. The Plaintiff's case is that of generic disparagement. Plaintiff admits that the Defendant is not directly disparaging Plaintiff's Chyawanprash, but",,
alleges that the disparagement is of “Chyawanprash†generically which includes Plaintiff's product which has a significant market share. Plaintiff,,
alleges that the proposed modified changes are wholly irrelevant, as the disparagement is of the entire category of Chyawanprash generically. Mr.",,
Hemant Singh argued that the advertisements mislead the consumers and gives an impression that Chyawanprash is not healthy and is rather harmful,,
because 50% of its composition is sugar. He argues that the intent of the advertisements is to denigrate and devalue Chyawanprash in the garb of,,
educating the consumers.,,
24. On the other hand, the thrust of the argument of Mr. Bhandari is that the products of the Plaintiff are not being disparaged and there is also no",,
generic disparagement of Chyawanprash. He argued that the Defendant's right of commercial speech has to be protected and the story line and the,,
intention of the impugned advertisement is only to inform the public at large about the intake of sugar and the availability of a sugar free variant.,,
25. Undoubtedly, the impact of advertisements in electronic media cannot be understated. The visual impact of the telecast and imprint has immense",,
effect. The Supreme Court in Tata Press Ltd. v. MTNL & Ors (1995) 5 SCC 139 has held that commercial speech is a part of the freedom of speech,,
and expression guaranteed under article 19(l)(a) of the Constitution of India. An advertisement was taken to be a species of commercial speech. In,,
paragraph 23 of the aforesaid case, the Supreme Court elucidated as follows:--",,
“….Advertising which is no more than a commercial transaction is nonetheless dissemination of information regarding the product advertised.,,
Public at large is benefited by the information made available through the advertisement. In a democratic economy free flow of commercial,,
information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information,,
disseminated through advertisements. The economic system in a democracy would be handicapped without there being freedom of ""commercial",,
speech""...â€",,
26. It is to be borne in mind that both Plaintiff as well as the Defendant sell Chyawanprash and also the sugar free variants. The Plaintiff does not,,
dispute that Chyawanprash contains 50% sugar, but contends that the same is as per the ayurvedic recipe. In support of this submission, the Plaintiff",,
has also relied upon certain authoritative textbooks. Relying upon the same, it has been contended that the composition of Chyawanprash contains",,
sugar as an important ingredient. The Defendant also claims that it has developed the sugar free variant as per authoritative textbooks. It is claimed,,
that its product uses all the ingredients as prescribed in the recipe except for 6 ingredients out of which 3 are sources of sugar and other three are,,
suitably replaced for benefits.,,
27. In view of the competing rights of the parties, the Courts have enunciated several tests to determine and decide the question of disparagement.",,
The decision of the Division Bench in Dabur India Ltd. v. M/s Colortek Meghalaya Pvt. Ltd. (2010) SCC Online Del 391 is relevant in this context,",,
wherein the Court inter alia held as under:-,,
“14. On the basis of the law laid down by the Supreme Court, the guiding principles for us should be the following:-",,
(i) An advertisement is commercial speech and is protected by Article 19(1)(a) of the Constitution.,,
(ii) An advertisement must not be false, misleading, unfair or deceptive.",,
(iii) Of course, there would be some grey areas but these need not necessarily be taken as serious representations of fact but only as glorifying one's",,
product.,,
To this extent, in our opinion, the protection of Article 19(l)(a) of the Constitution is available. However, if an advertisement extends beyond the grey",,
areas and becomes a false, misleading, unfair or deceptive advertisement, it would certainly not have the benefit of any protection.",,
15. There is one other decision that we think would give some guidance and that is Pepsi Co. Inc. & Ors. v. Hindustan Coca Cola Ltd. & Another,",,
2003 (27) PTC 305 (Del.) (DB). In this decision, a Division Bench of this Court held that while boasting about one's product is permissible, disparaging",,
a rival product is not. The fourth guiding principle for us, therefore, is: (iv) While glorifying its product, an advertiser may not denigrate or disparage a",,
rival product. Similarly, in Halsburyâ€s Laws of England (Fourth Edition Reissue, Volume 28) it is stated in paragraph 278 that ""[It] is actionable when",,
the words go beyond a mere puff and constitute untrue statements of fact about a rival's product."" This view was followed, amongst others, in Dabur",,
India Ltd. vs. Wipro Limited, Bangalore, 2006 (32) PTC 677 (Del). ""[It] is one thing to say that the defendant's product is better than that of the",,
plaintiff and it is another thing to say that the plaintiffs product is inferior to that of the defendant.""",,
16. In Pepsi Co. it was also held that certain factors have to be kept in mind while deciding the question of disparagement. These factors are: (i) Intent,,
of the commercial, (ii) Manner of the commercial, and (iii) Story line of the commercial and the message sought to be conveyed. While we generally",,
agree with these factors, we would like to amplify or restate them in the following terms:-",,
(1) The intent of the advertisement - this can be understood from its story line and the message sought to be conveyed.,,
(2) The overall effect of the advertisement - does it promote the advertiser's product or does it disparage or denigrate a rival product?,,
In this context it must be kept in mind that while promoting its product, the advertiser may, while comparing it with a rival or a competing product,",,
make an unfavorable comparison but that might not necessarily affect the story line and message of the advertised product or have that as its overall,,
effect.,,
(3) The manner of advertising - is the comparison by and large truthful or does it falsely denigrate or disparage a rival product? While truthful,,
disparagement is permissible, untruthful disparagement is not permissible.â€",,
28. From the reading of the above noted judgement, it emerges that the Court has to necessarily examine the intent and overall effect of the",,
advertisement. The ""look and feel"" of an advertisement and the message conveyed by the story line to an average person, are the critical factors",,
which assist the Court to come to a right conclusion. If one were to view the proposed modified print advertisement, it can be clearly discerned that",,
the Plaintiff's product is not the subject matter of comparison. The comparison is with Chyawanprash as a generic product. As discussed earlier the,,
law permits comparison. While making a comparison, a competitor can declare his goods to be the best in the world even though the declaration is",,
untrue, however, while claiming that its goods are better than his competitor, he cannot say that the competitorâ€s goods are bad. Thus, puffery is",,
allowed, but slander and defamation of the goods of the competitor is impermissible. The proposed Print advertisement is only making a comparison",,
with the generic product “Chyawanprash†where a declaration is being given that the product of the Defendant does not contain sugar. The,,
impugned advertisement in its modified version is highlighting the benefits of the sugar free variant. Plaintiff's contention that Chyawanprash has been,,
shown to be bad or unhealthy is misplaced. The way I see it, the modified advertisement only gives the information and a choice or option to the",,
viewers/consumers who would like to buy a product that is giving the benefit of Chyawanprash without sugar. The comparison in the present case is,,
inevitable. The benefit of a product without sugar can be best showcased by juxtaposing with the variant that has sugar in it. The question whether the,,
sugar free variant is indeed a healthier option, is being left for the consumer to decide. But, certainly it cannot be said that the advertisement is in any",,
manner implying disparagement of “Chyawanprash†generically.,,
29. Though the original versions of the advertisements are not subject matter of discussion in the present judgment, however, it needs to be understood",,
that even if there was any hint of unwarranted depiction, the same has been removed in the proposed modified advertisement. Mr. Bhandari is also",,
right in saying that the statement made in the print advertisement is factually correct. The declaration in the advertisement to the effect,,
Chyawanprash mein 50% se zyada cheeni hai"" [Chyawanprash contains more than 50% sugar] is factually correct, and this is not a disputed fact.",,
The message ""zara sochiye apke Chyawanprash mein 50% se zyada cheeni hai [thinkover: Chyawanprash contains more than 50% sugar]/dyan de ji",,
ye apke Chyawanprash mein 50% se zyada cheeni hai [pay attention Chyawanprash contains more than 50% sugar] is along with a picture where a,,
glass bottle has been split open into two halves: one half is shown containing a white substance suggesting it to be sugar and the other half containing a,,
dark colored substance suggesting it to be the herbal ingredients of Chyawanprash. These are cautionary/informative messages to the viewers that the,,
product Chyawanprash contains 50% sugar. This is followed by a claim made by the Defendant that its product has all the benefits of Chyawanprash,,
without sugar. The visualization of the advertisement does not in any way suggest that Chyawanprash is unhealthy or is bad for consumption. It only,,
sends an impactful message that Chyawanprash, as a matter of fact, contains 50% sugar. The Defendantâ€s right of free speech permits it to state",,
the benefit of its product and is also entitled to make a comparison to the extent it has been done in the advertisement in question.,,
30. Likewise, the story board of the TV Commercial, the one which is presently continuing and also the proposed TVC has no component of",,
comparison with the Plaintiff's product. The comparison in both the TVCs is again with Chyawanprash. The story board of the advertisement shows,,
an actor, eating the contents from a bottle with a spoon. A child portraying to be his son confronts him and enquires if he is eating ""cheeni"" [sugar].",,
The mother of the child steps in and points out that the content of the bottle consumed by the father contains more than 50% sugar and at that stage,",,
the Defendant's product is shown with the message that it does not contain sugar. This message is then repeated by showing a spoon loaded with,,
ingredient with a voice over message to the effect ""cheeni wali immunity bhagae [give away sugar based immunity]. This is followed by depicting the",,
Defendant's product with a voice over message ""immunity bina cheeni ke [immunity without sugar]. The story line emphasizes that there is a sugar",,
free variant which gives the same benefit of immunity that comes from Chyawanprash. Again, the comparison here is only limited to show that",,
Chyawanprash traditionally contains 50% sugar and that Defendant has a sugar free variant. This comparison, is not slanderous or denigrating the",,
generic product Chyawanprash and is therefore permissible.,,
31. I also do not find any merit in the contention of the Plaintiff that the advertisement is misleading and malicious, as the same does not compare",,
Defendant's sugar free diabetic product with other sugar free similar products in the market including Plaintiff's Chyawanprakash which is also sugar,,
free. In fact, the advertisement is not comparative in a strict sense. It only gives a message that the Defendant's product which is a sugar free variant",,
is available for the consumers. In this process, no doubt a comparison has been done with the sugar based product; however, there is no misleading",,
aspect to it. The main thrust of the advertisement is to showcase the benefit of Chyawanprash without sugar and therefore the Defendant was not,,
required to compare the product only with other similar products as has been contended by the Plaintiff.,,
Is the Defendant misleading and misrepresenting the consumers that Chyawanprash is harmful?,,
32. Mr. Hemant Singh has argued that the formulation of the Defendant is a diabetic sugar free Chyawanprash and since there is no comparison being,,
done with diabetic Chyawanprash, the entire campaign is mischievous and misleading. He also argued that comparing different categories of product",,
as comparable is not permissible in law. He also urged that the Defendant is misleading and misrepresenting to the consumer that Chyawanprash is,,
harmful even to non-diabetic consumers which is a false statement. However, I am unable to perceive any such misrepresentation or misleading",,
declarations or statement in the advertisement in question. In fact the Defendant is not stating that the product ""Chyawanprash"" is harmful. Defendant",,
is clearly highlighting that a healthier option is available. This does not render the Plaintiff's product as unhealthy or bad. No material has been shown,,
to say that the Defendant's product Chyawanprashad is only meant for diabetic patients. It may be suitable for them is altogether another aspect. It,,
does not mean that a non-diabetic patient cannot consume the Defendant's product.,,
Is the Defendant disparaging the entire category of Chyawanprash by stating in its advertisement that it contains high level of sugar?,,
33. The law relating to disparagement has been laid down by several Courts in numerous judgments and both the parties have cited quite a few,,
judgments in support of their stand. The definition of disparagement as given in Black's Law Dictionary, Eighth Edition reads as under:-",,
A derogatory comparison of one thing with another; the act or an instance of castigating or detracting from the reputation of, esp. unfairly or",,
untruthfully; a false and injurious statement that discredits or detracts from the reputation of another's property, product or business.""",,
Black's Law Dictionary, Eighth Edition, defines ""Trade Disparagement"" to inter-alia mean:",,
The common-law tort of belittling someone's business, goods, or services with a remark that is false or misleading but not necessarily defamatory. To",,
succeed at the action, a plaintiff must prove that; the defendant made the disparaging remark; the defendant intended to injure the business, knew that",,
the statement was false, or recklessly disregarded whether it was true; and the statement resulted in special damages to the plaintiff, by passing off.""",,
34. Amongst the judgments cited by the parties, the learned counsel for the Plaintiff has urged that the decision in the case of Hindustan Unilever Ltd.",,
vs. Gujarat Co operative Milk Marketing Federation Ltd. & Ors (supra) is squarely applicable to the present case wherein the Court has held that,,
generic disparagement of a rival product without specifically identifying or pin pointing rival product is equally objectionable. Even if there is no direct,,
reference to product of Plaintiff and only a reference is made to entire class of products in its generic sense, even in those circumstances",,
disparagement is possible. However, during the course of arguments, the counsel for the Defendant pointed out that the said judgment has been",,
appealed and the Division Bench of High Court of Bombay has held that a blanket injunction could not have been granted by the learned single judge,,
and that the TVC cannot be said to be of objectionable nature. Nonetheless, the Court has to take an independent view in each case having regard to",,
the Commercial in question. The Courts have also said that the Plaintiff ought not to be hypersensitive. Ultimately, the Consumer is the one who has to",,
decide which is best suited for him or her. After having carefully analyzed the advertisement and the TVC, the Court does not find that the Defendant",,
is targeting the Plaintiff or the generic product 'Chyawanprash'. There is also nothing to suggest that the modified advertisement disparages or,,
denigrates the Plaintiff's product or Chyawanprash either overtly or covertly. The advertisement does not send a negative message, as is being",,
perceived by the Plaintiff. The Defendantâ€s limited comparative analysis cannot be comprehended to be depicting the rival product negatively. As,,
discussed above, there is nothing factually incorrect in the advertisement. The Defendant is thus entitled to say that the advertisements in question and",,
the story line portray truthful claims. The Defendant is also entitled to invite the consumers, who are avoiding sugar, to opt for its product which has no",,
sugar component at all. The story line of the TVC shows a man in his mid 30's who is trying to avoid sugar. The female actor is shown rejecting all,,
products which have sugar. When the person at the check out counter, apprises her of the fact that traditional Chyawanprash has more than 50%",,
sugar, she rejects that as well. There is no depiction of the product of the Plaintiff and the Defendant is only stating a fact and comparing its sugar",,
free variant with traditional/regular Chyawanprash which comparison as discussed above in detail, is permissible in law. There is no statement to the",,
effect that Chyawanprash is bad for health and should not be consumed. The sugar free variants are normally targeted for consumers who are,,
conscious of sugar consumption in the food and day-to-day life. Avoiding sugar may not be necessarily on account of a medical ailment. Consumers,,
often adopt sugar free variants by choice. Plaintiff's contention that sugar is not harmful and therefore the Defendant cannot denigrate Chyawanprash,,
because of high content of sugar is misconceived. There are several studies in public domain conducted by health organizations that suggest the,,
harmful effects of sugar. The World Health Organization in its report dated 7th August 2018 warns about the ill effects of sugar. At the same time,,
there is also sufficient material available that highlights the negative effect of sugar free alternatives. The authenticity and source of such studies,,
would need deeper scrutiny as the topic is highly controversial and debatable. The Court need not deliberate on this issue, as both the parties",,
manufacture and market both range of products. The question before the Court concerns whether the impugned advertisements are disparaging or,,
not. At this stage, the Court is to examine if the “look and feel†of the advertisements conveys a message that paints Plaintiffâ€s sugar based",,
health supplement - Chyawanprash in bad light. This is the pivotal aspect in the present case. To arrive at a just conclusion, the Court has to examine",,
and synthesize the advertising material and adjudge if the same presents a message that influences the mind against the competitors in a negative way.,,
The theme of the advertisements is to focus on the benefits of healthy sugar free alternatives, not to target the Petitionerâ€s product in particular.",,
There is no direct reference to the Plaintiffâ€s product per se. The key differentiator of the product is indeed “sugar†and that is the striking,,
feature of the Defendantâ€s product. Defendant has also assured the Court that the colour in the TVC does not create any doubt in the mind of the,,
viewers that the comparative product is of the Plaintiff. The comparison of sugar free product would necessarily be with a sugar based one, as the",,
absence of sugar is the unique selling attribute. In order to send a message that is effective and long lasting, impugned advertisements convey a",,
message comparatively, highlighting the benefits of a sugar free product. Petitioner interprets the warnings in the advertisements as disparaging the",,
class of sugar based products and that it is vindictively targeted. Court cannot ignore Defendantâ€s right to free speech, which includes right to ensure",,
widespread awareness of the benefits of its products. The parties should not be hyper sensitive about the messages. If there is no clear case of,,
disparagement, the Court would not like to interfere. In the present case, the intent of the Defendant is not eschewed, as the Plaintiff views it.",,
35. The Court also has to recogonize that the framework of the advertisements is designed with the objective to sway the consumers and coax them,,
to buying a particular product or service. Advertisements are used to artistically express and convey the messages to the public. There is bound to be,,
creativity, pun and a storyline in such messages, so that it creates an impact on the viewers or the readers. To keep the story engrossing, companies",,
indulge in making comparisons, to claim that they are better than the rest. Some leeway has always to be given to the advertiser, but at the same time",,
right to free speech cannot be stretched to allow them to become defamatory, disparaging or denigrating. One cannot ignore the fundamental",,
characteristic of comparative advertisements is appraisal by contrasting the products. There will often be an element of negative or adversarial,,
comparison. This is the natural outcome or byproduct of “comparisonâ€. Defendant has to be allowed to manifest the differentiators in the,,
competing products and also to give justifications for encouraging the consumers to prefer its product over that of the competitors. The intent behind,,
the comparative advertisements will invariably be to persuade the consumers to give preference to one of the competing products. Such,,
advertisements either expressly or subtly make a claim that the product of the advertiser is a better choice. This is permissible in law. The,,
advertisements in question do nothing more than that. The paramount consideration for the Court to discern disparagement is to go into the heart of the,,
matter and see the impact and impression the advertisements create. This simple aspect should not be made complex. I am not suggesting that Court,,
should take a view instinctively. Of course, in order to decide the question, the Court would have to reflect, inquire and assimilate all the relevant",,
factors, but the crux of the matter is always the intent and effect, that I have described as “look and feelâ€. The Courts, guided by principles",,
enunciated in judicial precedents, should test the merits of the claims of challenge by evaluation of the message and effect of the advertisements. The",,
comparative advertising campaign should thus be “comparison positiveâ€. Advertisements often contain valuable information for the consumers and,,
can promote healthy competition in the market. If this is the message conveyed, the courts would be resilient and allow the negative derivatives of",,
comparison. This is because the final outcome is positive. However if it can be gauged that the message broadly demonstrates slanderous or,,
indiscriminate negative comparison or insinuation, Courts should not be slow in ensuring that such messages do not spread. If it does hurt or annoy the",,
Plaintiff, it is nothing but display of an over sensitive approach, that canâ€t be helped.",,
36. Mr. Singh asserts that the recipe of Chyanwprash requires the inclusion of sugar in large portion and relies upon the ayurvedic texts to contend,,
that sugar is an essential ingredient and the Plaintiffâ€s product cannot thus be denigrated because it contains sugar. This to my mind is a pedantic and,,
is an extremely narrow view. Defendant is not portraying that Chyanwprash is a harmful product. The focus is only on one of the ingredients.,,
Defendant claims that the merits and benefits of Chyanwprash can be absorbed and drawn from an alternative which does not contain sugar. Its,,
selling point is that it does not contain sugar. Defendant would like this to be the focal issue in the advertisements in print and TVC. The Courts should,,
not stifle innovation and fair competition. If the Defendant claims that its product solves the needs of the present times where public is shunning sugar,,
based products, it should be allowed to inform the public about the same. It claims that sugar free product achieves the same level of efficacy without",,
the harmful or negative effect of sugar, if any. The Court should not restrain the Defendant, merely because the stakeholders in the industry feel that",,
advertisement is hurting them. The impending challenge faced by the Plaintiff on account of Defendantâ€s product cannot be allowed to be achieved,,
by muffling or smothering the message of the Defendant. The Courts should not be asked to suffocate the competitors on a perceptive understanding,,
of the competitor that the message delivered through the advertisements is disparaging. Defendantâ€s right of free speech needs to be weighed upon,,
and protected. Defendant should be allowed to use marketing skills and sell its products, as along as they are not disparaging. In the present case, the",,
cautionary messages of sugar content cannot be termed as disparagement.,,
37. In view of the above discussion, the Court does not find any ground to restrain the Defendant from publishing the proposed modified print",,
advertisement or the modified TVC and also the TVC which is currently running. Accordingly, the applications bearing I.A. Nos. 10869/2018,",,
16105/2018 & 3084/2019 are dismissed with a direction that the Defendant shall remain bound by the undertaking given in the affidavit dated 14th,,
May 2019 during the pendency of the present suit, with no orders as to cost. The Defendant shall publish/telecast the modified advertisements strictly",,
in accordance with the changes proposed in the affidavit. For the sake of clarity, it is noted that the print advertisement and TVCs, shall be aired/",,
published in the following manner:,,
i) Print advertisement if published should be as per “Document I†of the affidavit.,,
ii) Storyboard of the TVC [aired in July 2018], if aired should be as per the undertaking given by Defendant in Para 5 of the affidavit.",,
iii) Storyboard of the TVC [aired in December 2018], if aired should be as per the undertaking given by the Defendant in Para 6 of the affidavit.",,
38. The learned counsel for the parties while reserving their rights did not advance any arguments on the aspect of trademark infringement.,,
Accordingly, the Court has not examined the said aspect and is left open for consideration at the final stage.",,
39. Application bearing I.A. No. 16106/2018 is allowed and the Compact Disk containing the impugned advertisement forming part of the injunction,,
application bearing I.A No.16105/2018 is taken on record, subject to just exceptions. The application stands disposed of.",,
40. Needless to say that the opinion expressed by the Court herein shall not have any binding effect on the final adjudication of the case.,,
