The Calcutta High Court while issuing permanent injuction order against four advertisements by the makers of Baidyanath Chyawanprash Special for being denigrating to all other brands of Chyawanprash including Dabur Chyawanprash has observed that false and misleading statements can't be allowed under garb of Free Speech.
The single-judge bench of Justice Shekhar B Saraf was adjudicating upon a plea moved by Dabur seeking an injunction against the uploading of five advertisements that had allegedly disparaged the goodwill and reputation of its trademark.
1. Admittedly, impugned advertisements are comparative in nature and untruthfulcomparisons are actionable in nature. The advertisement mentions ‘ordinary’ Chyawanprash containing ‘42 ingredients’ but the respondent admits that there is no ‘Chyawanprash’ in the market that contains 42 ingredients.
2. The petitioner’s product was identified and targeted. Dabur Chyawanprash advertises with ‘more than 41 Ayurvedic herbs’, for this reason the reference of 42 ingredients is deliberate and malicious in nature.
3. Another 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. The respondent mischievously uses the term “vegetable oil” instead of “til oil”.
4. The color scheme of the bottle of red and golden is also similar to that of petitioner’s product which is widely recognized and recalled by the consumers. The petitioner has 63 % of the market share, therefore, the primary target of the impugned advertisements is to persuade consumers away from Dabur Chyawanprash and shift to buying the respondent’s product instead.
5. Even 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 and thus it demands Court's intervention. Reliance was placed on Dabur India Limited –v. Emami Limited, Dabur India Limited –v. Colgate Palmolive India Ltd.,
6. The false and misleading impugned advertisements are not mere puff and are based on 'serious' comparison. Respondent has made an untruthful comparison by exploiting the lack of knowledge of the ordinary consumers. The term “ordinary” or “aam” (hindi) is misleading because under Section 3(a) of the Drugs & Cosmetic Act, there cannot be an ‘ordinary Chyawanprash’ because no Chyawanprash in the market contains only 42 ingredients, and therefore, this amounts to disparaging the entire class of ‘Chyawanprash’. 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. Counsel relied on Hindustan Unilever Ltd. –v. Reckitt Benckiser (India) Ltd.
7. The intent and the manner of representation in the impugned advertisements are false and misleading and the same is not protected under commercial speech as laid down in Article 19 (1) (a) of the Constitution of India but hits Article 19(2). The respondent has admitted that ayurvedic texts have different formulations and merely because it has less than 52 ingredients does not make the formulation incomplete or insufficient.
8. Message being conveyed in the advertisement is that other Chyawanprash are insufficient and therefore not Chyawanprash at all. It has been misleadingly implied that the respondent’s
Chyawanprash is complete where as other Chyawanprash are incomplete as it poses question posed as to ‘whether your Chyawanprash is complete?’
9. 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.
10. The defendant’s advertisements make the public at large aware of the beneficial knowledge for consumers. The defendant, through its advertisements, has given the true and correct knowledge to the consumers, and made the public at large, aware about the truth as well as the benefits of its own product, which contains all necessary ingredients. The plaintiff is aware of the aforesaid, and it is scared that such fact might come out in the public domain when the public at large starts questioning the product that they buy or consume.
11. False statements have been made before the Court by the respondent. The respondent says 42 ingredients have been used in the advertisements because it rhymes with 52 but the advertisement is released in Hindi and ‘baavan’ and ‘bayalees’ do not rhyme and hence, it is a false claim. The intent and manner of advertisements is to convey a message that other Chyawanprash in the market are ‘ordinary’ or ‘deficient’ as they contain only 42 ingredients and are not manufactured as per correct text, hence are deficient and do not provide health benefits.
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. Free flow of commercial information is indispensable in a democracy, and the economic system in a democracy will be handicapped without the
freedom of commercial speech. Thus, the defendant has the right to advertise its products as part of its right to “commercial speech” which is a part of freedom of speech and expression.
2. Protection under article 19(1) (a) is also available to the recipient of the speech, and it also protects the rights of an individual to listen, read and receive the said speech. In the present context, it is the rights and interest of the consumers which is getting affected if the defendant's advertisement is restrained from informing them about the benefits of the product. (Tata Press Limited Vs. Mahanagar Telephone-Nigam Limited & Ors, 1995 Latest Caselaw 352 SC)
3. Dabur ought not be hyper-sensitive. It is settled law that comparison between products is allowed, and it is permissible for an advertiser to proclaim that its product is the best. However, 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.
4. Dabur attempted 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.
5. The defendant’s advertisements make the public at large aware of the beneficial knowledge for consumers. The defendant, through its advertisements, has given the true and correct knowledge to the consumers, and made the public at large, aware about the truth as well as the benefits of its own product, which contains all necessary ingredients.
6. It is settled law that comparative advertising is permissible under the law. 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.
7. The intent of the defendant’s commercial is to suggest that the product of the defendant is better than others. While doing so, the commercial does not denigrate or disparage the product of the plaintiff which is allowed as per settled law.
High Court Observation
The question for the Court to settle was : Whether the impugned advertisements published by the defendant/respondent amount to disparagement or not?
The Court examined a slew of cases which set precedents around the question so posed and come up with certain undisputable principles that emerged:
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 noted that facts of Hindustan Unilever Limited (supra) applies to the present case. The court in that dealt with the impugned advertisement of kitchen cleaning liquid. The petitioner was
successful in getting relief from the court because the nature of advertisement was serious. The two rival products were compared with each other in a manner which highlighted that the advertised product is far superior in cleaning the dishes as compared to its rival. The superiority of the advertised product was established by pointing and insinuating that the rival product is deficient and lacks cleaning property. Overall impression of the advertisement portrayed the rival product in a bad light and the claim with regard to deficiencies of the rival product was not established as a true statement by the advertiser. In light of such facts, the court held that the comparison of qualities was not in the nature of a “puff”, moreover, the court held that advertising data, figures etc. of the rival products should not be permitted.
"the comparison made by the defendant/respondent is specifically pointing towards deficiency of the other rival product 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."
The Court rejected the Respondent's contention that their advertisements doesn't target Dabur and noted that it is obvious that the petitioner being the leading brand in the market with 63 % share will be hit the most by such serious comparison.
It further added that the defendant did not exercise its right to free speech in an honest manner.
"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 below conclusions were arrived at by the Court:
1. "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."
2. "A misleading advertising, as the term implies, is one that deceives, manipulates, or is likely to deceive or manipulate the consumer. 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. In the present case, the video advertisement is, to a large extent, misleading. As agreed by both the parties that comparative advertisement within the gambit of puffery under the law is allowed. The problem however, in my view, arises when a bottle highlighting 42 ingredients and labeled as ‘Chyawanprash’ is shown in the respondent’s advertisement. Under Section 3 (a) of the Drugs & Cosmetic Act,1940 and as agreed by both parties, there can be no Chyawanprash available in the market with 42 ingredients. The ayurvedic texts prescribed and approved under the First Schedule of the Act lays down a minimum of 47 ayurvedic ingredients that are required for the product to qualify as “Chyawanprash”. By showing 42 ingredients on the bottle of Chyawanprash, and thereafter, referring to the same in comparison to 52 ingredients at two crucial junctures in the advertisement, the defendant falls with the realm of slander as the advertisement clearly compares its own product with other ‘Chyawanprash’ that contain only 42 ingredients. Reference to the number ‘42’ is not permissible as ‘Chyawanprash’ cannot be made with only 42 ingredients and would not
qualify as a ‘Chyawanprash’ as per Drugs and Cosmetics Act, 1940."
3. "The very statement that Chyawanprash is available in the market with ‘42 ingredients’ is a mischievous and false statement that would create confusion in the minds of the general public. The reference to ‘42 ingredients’ is an innuendo that the Chyawanprash of all other brands is an incomplete formulation and is not ‘Chyawanprash’ at all. Such a comparison is not only deleterious but a factually false statement that denigrates all other brands of Chyawanprash. Precedents cited by both parties make it clear that true statements can be made even if it denigrates the rival’s product, but false and misleading statements cannot be allowed under the guise of free speech. In light of the same, this video advertisement is disparaging and an action from this Court would lie. In light of the reasons provided above, this video advertisement is permanently injuncted."
In view of the above, the Court allowed a modified version of the video advertisement and suggested on the same.