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The Delhi High Court has dismissed a plea by Dabur seeking to restrain Emami from broadcasting, printing and publishing ZANDU CHYAVANPRASHAD advertisements in any media.
While dismissing Dabur’s plea for an interim injunction, it was observed that courts should not stifle innovation and fair competition. The judgment passed by a Single Judge Bench of Justice Sanjeev Narula states,
“The Court should not restrain the Defendant, merely because the stakeholders in the industry feel that advertisement is hurting them.”
Dabur had sought an interim injunction on the ground that Emami’s advertisements were disparaging and injurious to the goodwill and reputation of its product, Chyawanprash.
The advertisements under scrutiny revolved around the assertion that other Chyawanprash brands contained 50% sugar as opposed to Emami’s product.
After Dabur moved the High Court, Emami had willingly made certain modifications in the original advertisements. Before the Court, Dabur argued that it was a case of generic disparagement as Emami was misleading and misrepresenting to the consumers that Chyawanprash was harmful.
It was contended that as per the Ayurvedic recipe, the ingredients required to make Chyawanprash included various herbs, and thus required a high quantity of sugar to make the product palatable.
Dabur further claimed that Emami’s product was meant for diabetic patients. Thus, a comparison of a sugar-free Chyavanprashad with “non-diabetic traditional Chyawanprash” was not permissible in law.
Emami on the other hand argued that the advertisements in no manner tarnished, disparaged or slandered the product of the plaintiff. It stated that the advertisements were only intended to inform the public at large about the availability of a sugar-free Chyavanprashad.
It was submitted that the advertisement nowhere depicted that intake of sugar was bad for health, and that it only provided an option to buyers who want to avail the benefits of Chyawanprash without sugar.
Emami also brought to notice Dabur’s own sugar-free version of Chyawanprash known as “Dabur Chyawanprakash” with the tagline “goodness of Chyawanprash with no added sugar“.
After hearing the parties, the Court analysed a series of cases and the Code of Advertising Standards Council of India to conclude that comparative advertising was permissible in law but it must not be false, misleading, unfair or deceptive.
The Court observed that while making a comparison, a competitor could declare his goods to be the best in the world even if untrue. However, one could not say that the competitor’s goods were bad.
“Thus, puffery is allowed, but slander and defamation of the goods of the competitor is impermissible.”
After analysing the advertisements, the Court noted that it was “clearly discerned” that Dabur’s product was not the subject matter of comparison and that the comparison was, in fact, with Chyawanprash as a generic product.
It also remarked that Dabur’s contention that Chyawanprash was shown to be bad or unhealthy, thus disparaging its reputation, was misplaced.
“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.”
It also recorded that the declaration in the Chyavanprashad advertisement to the effect that Chyawanprash contained more than 50% sugar was factually correct.
The Court thus rejected Dabur’s contention that the advertisements were misleading and malicious.
“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.”
It was, therefore, concluded that Emami’s limited comparative analysis in its Chyavanprashad ad could not be comprehended to be depicting the rival product negatively. Recognizing the company’s right to free speech, the Court stated,
“…Court cannot ignore Defendant’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…
…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. Defendant’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.”
While discussing the importance of Emami’s “selling point” i.e. Chyavanprashad does not contain sugar, the Court observed,
“The theme of the advertisements is to focus on the benefits of healthy sugar free alternatives.. The key differentiator of the product is indeed “sugar” and that is the striking feature of the Defendant’s product…”
It, therefore, cautioned courts against stifling innovation and fair competition in the market from new products that appeal to the present times.
“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.”
In view of the above, the Court concluded that there were no grounds to restrain Emami from publishing the advertisements. The Court also held that Emami will be bound by the modifications to the advertisements that it proposed itself, by way of an affidavit filed in the matter.
Dabur was represented by Advocates Hemant Singh, Manish Kumar Mishra and Akansha Singh.
Emami was represented by Advocates Abhimanyu Bhandari, Roohina Dua, Anirudh Bakhru and Cheitanya Madan.
Read the Judgment: