Delhi High Court injuncts Patanjali ad which denigrates other chyawanprash brands as 'dhoka'

The Delhi High Court has passed an interim order restraining Baba Ramdev's Patanjali Ayurved from streaming its new advertisement, which allegedly termed all other chyawanprash brands "dhoka" (fraud or deception) [Dabur India Limited v Patanjali Ayurved Limited & Anr]..Justice Tejas Karia ordered social media companies, Over The Top (OTT) platforms and broadcasters to block the advertisement within three days. "The Defendants shall take down / block / disable the Impugned Advertisement from from all electronic medium including national television channels, over the top platforms or any form of streaming system, and all other digital mediums including and print mediums and platforms on the World Wide Web / Internet, Newspapers, all of their social media accounts," the Court directed. .The Court passed the order aftrer Dabur India sued Patanjali for disparagement and unfair competition over a recent television commercial of Patanjali Special Chyawanprash. According to Dabur's plea, the ad featured Baba Ramdev warning consumers that “most people are being duped in the name of chyawanprash.” It termed other chaywanprash brands “Dhoka” (fraud or deception) and promoted Patanjali’s product as the only “original” Chyawanprash offering the “true power of Ayurveda.”Dabur alleged that the commercial deliberately maligns its own flagship product, Dabur Chyawanprash, which has dominated the market since 1949 with over 61% market share.It was contended that such messaging by Patanjali amounted to “generic disparagement” of the entire Chyawanprash category thereby, eroding consumer faith in Ayurveda-based health supplements..After considering the arguments, the Court ruled that the advertisement seeks to disparage the entire category of chyawanprash products. "Therefore, for an average viewer of the Impugned Advertisement featuring Mr. Baba Ramdev, a well-known authority on yoga and Vedic practices, and his assertion that only the Defendants’ Product is genuine Chyawanprash is likely to create a strong impression. Such a statement would naturally lead viewers to accept it as true and disregard other brands of Chyawanprash. In evaluating the overall impact of the Impugned Advertisement, it is necessary to consider factors such as the stature and influence of the endorser. Consequently, both in its tone and underlying intent, the Impugned Advertisement seeks to disparage the entire category of Chyawanprash products," the Court said. It added that even though Patanjali's advertisement does not particularly target Dabur's product, it refers to every other chyawanprash as ‘dhoka’, and Dabur, being the market leader, would be adversely affected by it. Therefore, the Court concluded that a prima facie case was made out for the grant of an injunction. "A false advertisement campaign would cause irreparable loss to the Plaintiff while stopping broadcast of an advertisement referring to the Plaintiff’s Product or the products of other competitors as ‘deceptive’ may not have any material effect on the Defendants, considering that it is free to advertise its product without reference to the competitor's products as deceptive."The Court added that while comparative advertising is permissible, such comparison cannot extend to disparaging a competitor’s product. It is open to an advertiser to highlight that a particular aspect or quality of its product is superior to that of a rival, provided that the overall message of the advertisement is not misleading, the Court underscored. “Any factual claim or representation made in an advertisement must be not only accurate, but also free from the potential to mislead. The assessment must be made from the perspective of the target consumers. An advertiser may compare a feature that is of little practical relevance to consumers and, by emphasising it, create an impression that its product is superior to the competitor’s,” the Bench said. The Court cautioned that if an advertisement crosses the permissible limits and becomes false, misleading, unfair, or deceptive, it ceases to enjoy the protection afforded by Article 19(1)(a) of the Constitution. “The freedom of speech under Article 19(1)(a) of the Constitution does not extend to the dissemination of falsehoods or confer any right to defame, disparage, or denigrate a competitor. As with all freedoms protected under Article 19 of the Constitution, the right to commercial speech is also subject to reasonable restrictions under Article 19(2) of the Constitution. Since public interest is paramount, comparative advertising may be regulated under Article 19(2) of the Constitution when it is found to be misleading, unfair, or untruthful. No freedom is absolute, the Defendants cannot be granted liberty to disparage the products of it’s competitors.”Thus, the Court passed the injunction order against Patanjali..Senior Advocate Sandeep Sethi with advocates R Jawahar Lal, Anirudh Bakhru, Meghna Kumar and Krisna Gambhir appeared for Dabur. Senior Advocates Rajiv Nayar and Jayant Mehta along with advocates Rahul Sahay, Rishabh Pant, Neha Gupta, Abhijeet Kr Pandey, Osheen Verna and Pratham Arora represented Patanjali. .[Read Order].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.