The Calcutta High Court on Tuesday permanently injuncted four advertisements by the makers of Baidyanath Chyawanprash Special for being disparaging to all other brands including Dabur Chyawanprash [Dabur India Limited v. Shree Baidyanath Ayurved Bhawan Pvt Ltd].
Justice Shekhar B Saraf was hearing a plea by Dabur seeking an injunction against the uploading of five advertisements that allegedly disparaged the goodwill and reputation of its trademark.
While partially allowing the plea, the Court stated that the advertisement was based on false information and the comparison was misleading to the consumers.
“These commercials have the potential to influence consumer’s purchase preference in the market and it also harms its rivals, hence, they must be used with caution. There should be a balance between the right of commercial speech and the interest of public and competitors,” the order recorded.
In a nutshell
– Dabur moved court against an advertisement of Chyawanprash by Baidyanath Ayurved for disparaging their trademark;
– Dabur argued that the ads were untrue and disparaging in nature, thus actionable;
– Baidyanath argued that it had a right to commercial speech as a part of freedom of speech and expression which could not be curtailed;
– The Court, however, held that commercial speech was not protected in serious negative comparisons;
– Thus, four out of five ads were injuncted. However, three were would be allowed if modifications as laid down by the Court were implemented.
Dabur had sought the taking down of advertisements by Baidyanath as they were comparative in nature and made untruthful comparisons. It was stated that the Dabur’s product was identified and targeted. Although it was admitted that there was no direct reference to Dabur, there was a generic disparagement, giving rise to a cause of action.
Baidyanath’s comparison to other products in the market containing only 42 ingredients was said to be false and thus, amounted to disparagement, since a minimum of 47 ingredients were required to make Chyawanprash.
Dabur was aggrieved by the implication in the ads that Baidyanath’s Chywanprash was made with correct recipe and the other products in the class were not.
Baidyanath defended its stand on the grounds that the right to commercial speech was a part of freedom of speech and expression guaranteed under Article 19 (1) (a) of the Constitution and that as per settled law, any curtailment of advertisements would affect this fundamental right.
It was stated that Dabur ought not to be hyper-sensitive about its advertisements since it was settled that comparison between products is allowed.
It was argued that if such claims were to be accepted, then no other manufacturer would be able to advertise its product, because in doing so, it would necessarily mean that Dabur’s product was being targeted.
Further, it was highlighted that the advertisements do not refer to Dabur’s product at all, but an unnamed fictitious product.
While considering whether the advertisements amounted to disparagement or not, the single-judge first examined case law presented by counsel for both parties and culled out certain indisputable principles that emerged from them.
Essentially, it was derived from these judgments that the Court must apply the reasonable man test when deciding an issue of disparagement.
The question to be examined must be whether a serious comparison was made or not, since a comparison of “Better or Best” based on truthful claims was permitted. Further, the impact of the advertisement must be examined as to whether it gives the impression that a rival product is defective.
It was stated that only “puff” and honest comparison was allowed and even generic disparagement was objectionable. Finally, it was noted that comparative advertising campaign should be ‘comparison positive’, promoting healthy competition.
It was found that the judgment in Hindustan Unilever Ltd v. Reckitt Benckiser (India) Ltd applied to the facts of the case squarely since the comparison specifically pointed towards deficiency in rival products and the claim made with regard to number of ingredients of the rival product was false and misleading.
“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,” Justice Saraf underscored.
It was stressed that the comparison fell under the ambit of “negative comparison” since they portrayed Dabur Chyawanprash as inferior or lacking in ten more ingredients that are allegedly essential for it to be complete, and was thus not protected as commercial speech.
Therefore, it was held that the advertisements apart from one that did not mention the number of ingredients were disparaging. Except for one, the Court made suggestions for the modification of other injuncted advertisements by essentially removing the reference to “42 ingredients”, that would then be allowed to be displayed in the future.
The Court made the following suggestion for a modified version, that would be permitted to be shown:
“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.”
Senior Advocate Sudipta Sarkar and Advocates Jawahar Lal, Debnath Ghosh, Anuj Garg, Sudhakar Prasad and Pradipta Bose appeared for Dabur.
Baidyanath was represented by Advocates Manish Biala, Amrita Panja Moulick, Ashutosh Upadhaya and Devesh Ratan.
Read Judgment here
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