Cal HC | Disparagement or mere puffery? Court decides in matter of offending/misleading advertisements [Dabur India v. Baidyanath Ayurved]

Calcutta High Court: Shekhar B. Saraf, J. decided on a petition which was filed seeking remedy against impugned advertisements disparaging the goodwill and reputation of the petitioner and its product.

Facts:

The plaintiff/petitioner had filed the present suit against an advertising campaign containing five impugned advertisements issued by the defendant/respondent one after the other during October and November 2021 in relation to its product “Baidhyanath Chyawanprash Special”. For seeking remedy against the impugned advertisements the petitioner/plaintiff had moved this application, praying for an order of injunction restraining the respondent from issuing, publishing or uploading the impugned advertisements disparaging the goodwill and reputation of the petitioner and its product ‘Chyawanprash’ being sold under the trademark “DABUR”.

Arguments:

Sudipta Sarkar, Senior Advocate, appearing on behalf of the petitioner made the following arguments:

1. It is admitted by the defendant/respondents that the impugned advertisements are comparative in nature, thus, such untruthful comparisons are actionable in nature.
2. a malicious comparison has been made by the respondent in stating that its product is made with ‘100% pure ghee’ whereas petitioners’ product is made with a mixture of ghee plus vegetable oil spreading further misinformation and confusion because Dabur uses a mixture of til oil and pure desi ghee based on ancient ayurvedic texts.
3. If it is assumed that no direct reference is made to Dabur, there still exists a generic disparagement to the entire class of Chyawanprash thus giving a cause of action to the petitioner as a manufacturer of the product.
4. The First Schedule to the Drugs and Cosmetics Act, 1940 provides for various ayurvedic texts that may be followed to manufacture Chyawanprash and in none of these texts a Chyawanprash can be made with 42 ingredients. In fact, the minimum number required is 47 ingredients. Ergo, the reference to ‘42’ is false and consequently amounts to disparagement.
5. The intent and the manner of representation in the impugned advertisements are false and misleading. According to the petitioner unfair or deceptive advertising is not protected under commercial speech as laid down in Article 19 (1) (a) of the Constitution of India but hits Article 19(2). Hence, it is impermissible.

Manish Biala, Counsel appearing for the Defendant/Respondent, made the following arguments:

1. The defendant’s advertisement and right to commercial speech is a part of freedom of speech and expression guaranteed under Article 19 (1) (a) of the Constitution. It is settled law that any restraint or curtailment of advertisements would affect the fundamental right under Article 19 (1) (a). The purpose of advertising is dissemination of information regarding the product advertised and public at large is benefitted by the information disseminated.
2. The said implication is natural and allowed, as one consumer may look at the advertisement and conclude that one product is superior while some other consumer may look at it from another point and think that the other product is inferior. This does not constitute disparagement under the law, and the advertisement cannot be restrained.
3. The plaintiff has attempted to create a monopoly in the market by abusing the process of law. It is settled law that the plaintiff cannot restrain others from advertising on the ground that the plaintiff has major market share for a particular product and thus, it is the obvious target of any advertisement.
4. The defendant’s advertisements make the public at large aware of the beneficial knowledge for consumers.
5. It is settled law that comparative advertising is permissible under the law. Furthermore, in the present matter, the defendant’s advertisement is not comparative in the strict sense as the defendant’s advertisement only compares the defendant’s product with an unnamed fictitious product.

Analysis and Judgment:

Sole issue for consideration before this court was that whether the impugned advertisements published by the defendant/respondent amounted to disparagement or not.

The Court discussed the case laws cited by both the parties on the issue of disparagement.

After analyzing the above judgments and plethora of similar ones the Court laid down certain key principles that were required to be kept in the Court’s mind before deciding on whether the offending advertisement is disparaging or is a mere puffery:

a) While deciding the issue of disparagement the court has to apply the reasonable man test, that is, whether a reasonable man would take the claim being made as being a serious claim or not.

b) The impugned advertisement campaign has to be looked into with a broader perspective to decide whether a serious comparison is made by the alleged infringer.

c) The comparison in the nature of “Better or Best” based on truthful claims is permitted, but comparison in the nature of “Good v. Bad” is not.

d) The impact and impression of the impugned advertisements has to be examined and if it gives out an impression that the rival product has a defect or demerit (which is not true) then such impression would make it disparaging.

e) The comparison between rival products is allowed only to the extent of “Puff” and honest trade practice. Any malicious or deliberate depiction of rival product in a bad taste is not permitted.

f) Generic disparagement of a rival product without specifically identifying or pin pointing the rival product is equally objectionable, clever advertising can indeed hit a rival product without specifically referring to it. No one can disparage a class or genre of a product within which a complaining plaintiff falls and raise a defence that the plaintiff has not been specifically identified.

g) The comparative advertising campaign should be ‘comparison positive’. If the advertisements contain valuable information for the consumers and can promote healthy competition in the market, the courts should be resilient and allow the negative derivatives of such 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.

The Court concluded that the above case squarely applies to the present dispute because the comparison made by the defendant/respondent is specifically pointing towards deficiency of the other rival products including the petitioner’s product. Moreover, the claim made by the defendant/respondent with regard to number of ingredients of the rival product is false and misleading.

It was further noted that when the defendant highlights that other Chyawanprash contain only 42 ingredients, which is an untrue statement, it cannot claim right to free speech as the same is not allowed to communicate untruthful facts about the other rival products.

The Court was of the view that in the present case, direct comparison of number of ingredients between the two products is not in the realm of grey area as it points towards the very composition and data of the generic product available in the market. Furthermore, the comparison with a number of ingredients, that is, 42 ingredients, is malicious and slanderous as the product cannot be complete with 42 ingredients and the product of Chyawanprash in the market are all having at least 47 ingredients as per the Drugs and Cosmetics Act, 1940. Ergo, a comparison with a fictitious number that is lesser than the minimum requirement, insinuates that those products are not in compliance with the Drugs and Cosmetics Act, 1940. Such a comparison is slanderous and mischievous, and accordingly, amounts to disparagement.

However, keeping in mind the various precedents cited by both the parties, and on suggestions that had fallen from the Bar, a modified version of the video advertisement was allowed on the following conditions:

a) The bottle that is shown in the 6th second of the advertisement shall only have the printed words “CHYAWANPRASH” and no other word;

b) The reference to the words “42 nahi” in the 29th to 31st second of advertisement shall also be removed.

[Dabur India Ltd. v. Shree Baidyanath Ayurved Bhawan (P) Ltd., 2022 SCC OnLine Cal 234, decided on 08-02-2022]

For the Plaintiff/Petitioner: Mr Sudipta Sarkar, Senior Advocate, Mr Jawahar Lal, Mr Debnath Ghosh, Mr Anuj Garg, Mr Sudhakar Prasad and Mr Pradipta Bose

For the Defendant/Respondent: Mr Manish Biala, Ms Amrita Panja Moulick, Mr Ashutosh Upadhaya and Mr Devesh Ratan

Suchita Shukla, Editorial Assistant has reported this brief.