An advertiser needs to have the freedom to make advertisements containing “generic comparison” with other related products to highlight its own product and mere allusions are not sufficient to make out a case of disparagement, the Delhi High Court has said.
The court made the observation on a lawsuit by Zydus Wellness Products against Dabur India over commercials for ‘Dabur Glucoplus-C Orange’ as it refused to pass an interim order to restrain alleged “unfair competition” and disparagement in relation to the plaintiff’s ‘Glucon-D Tangy Orange’.
The plaintiff alleged disparagement of its product, which was stated to be a market leader in orange glucose powder drinks, on the ground that commercials gave the impression that all the orange glucose powder drinks are entirely inefficacious in providing energy and only the defendant’s product is capable of doing that.
The court observed an advertisement cannot be analysed in a hyper critical manner and, in the absence of any disparaging utterance, still or image, it was unable to arrive at a conclusion in favour of the plaintiff at this stage. It said in the process of depicting superiority, a generic comparison ought to be permitted and creativity cannot be stifled.
“Mere allusions, in the absence of a decipherable comparison would not be sufficient to make out a case of generic disparagement.
“An advertiser ought to have the freedom to make advertisements with generic comparison highlighting the features of its own product and if the same is done without an allusion to any market leader, objection cannot be raised unless representation being made is absolutely false or misleading,” Justice Prathiba M Singh said in a recent order.
The court said to portray a particular product as being superior or better than existing products, a generic comparison without launching a negative campaign against competitors ought to be permissible, failing which the strength of the advertisement could itself be considerably diluted.
When the advertisement is viewed from the perspective of an ordinary viewer, it does not give the impression of denigration or disparagement but that the defendant’s product is being self-promoted and the intelligence of an ordinary viewer ought not to be ignored while judging such commercials, it added.
“A television commercial is not to be analysed in a hyper critical manner. A commercial would have to be viewed as a whole from the view of an ordinary consumer or viewer. The message being portrayed in the commercial would have to be seen and if the message is not derogatory, no objection can be raised,” the court said.
“It is usual for advertisers and companies marketing and selling products to portray their products as being superior. In the process of depicting superiority, a generic comparison ought to be permitted and creativity cannot be stifled,” it further observed.
The court asserted it cannot be ignored that consumers are cognizant of advertisements being a “one-sided commentary” by sellers for the promotion of their own products and therefore, while deciding a disparagement suit, the overall impact of the commercial has to be considered and in the absence of any derogatory remarks, mere use of some expressions cannot lead to an injunction, it said.