Delhi High Court - Orders
Dabur India Limited vs The Advertising Standards Council Of ... on 24 November, 2023
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~74
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 737/2023, I.As. 22579/2023, 22580/2023 & 22581/2023
DABUR INDIA LIMITED ..... Plaintiff
Through: Mr. Akhil Sibbal Sr. Adv. with Mr.
R. Jawahar Lal, Mr. Anuj Garg, Ms.
Asavari Jain & Mr. Ankur Chibber
Advs (M. 9958996311).
versus
THE ADVERTISING STANDARDS COUNCIL
OF INDIA & ANR. ..... Defendants
Through: Ms. Avni Singh, Adv. (M.
9958018998)
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 24.11.2023
1. This hearing has been done through hybrid mode. I.A.22580/2023 (for exemption)
2. This is an application filed by the Plaintiff seeking exemption from filing Original/certified/translated copies of documents with proper margins, etc. Original documents shall be produced/filed at the time of Admission/Denial, if sought, strictly as per the provisions of the DHC (Original Side) Rules, 2018.
3. Exemption is allowed, subject to all just exceptions. Accordingly, the application is disposed of.
I.A. 22581/2023(for court fee)
4. This is an application seeking extension of time to file court fee. Let the court fee be deposited within two days. Application is disposed of.
CS(OS) 737/2023 Page 1 of 7This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 29/11/2023 at 00:12:37 CS(OS) 737/2023
5. Let the plaint be registered as a suit.
6. Issue summons to the Defendants through all modes upon filing of Process Fee.
7. The summons to the Defendants shall indicate that the written statement to the plaint shall be positively filed within 30 days from date of receipt of summons. Along with the written statement, the Defendants shall also file an affidavit of admission/denial of the documents of the Plaintiff, without which the written statement shall not be taken on record.
8. Liberty is given to the Plaintiff to file the replication within 15 days of the receipt of the written statement. Along with the replication, if any, filed by the Plaintiff, an affidavit of admission/denial of documents of the Defendants, be filed by the Plaintiff, without which the replication shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
9. List before Court on 12th December, 2023.
I.A. 22579/2023 (u/O XXXIX Rules 1 & 2 CPC)
10. Issue notice in the application.
11. The present suit has been filed by the Plaintiff - Dabur India Limited seeking inter alia stay of the order dated 30th September, 2023 (hereinafter, impugned order) issued by Defendant No. 1-Advertising Standards Council of India (hereinafter, ASCI).
12. ASCI is a self-regulated body operating in the advertising field, governing standards for advertisements under the 'Code for Self- Regulation of Advertising Content in India' (hereinafter, the 'ASCI Code'). The impugned order was issued by the Consumer Complaints Council CS(OS) 737/2023 Page 2 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 29/11/2023 at 00:12:37 (hereinafter, CCC), a body within the ASCI, which reviews the complaints received by the ASCI against advertisements, to ascertain whether such advertisements are compliant with the ASCI Code.
13. It is the case of the Plaintiff that it manufactures and sells its products under its house-mark 'DABUR' and other cognate and allied marks. The Plaintiff-company was established in 1884, and deals in manufacturing and marketing of a diverse range of ayurvedic/wellness/ healthcare/ food products, including 'DABUR RED PASTE'.
14. It is averred that 'DABUR RED PASTE' is an 'Ayurvedic Medicine' (Proprietary Ayurvedic Preparation) defined under Section 3(h)(i) of the Drugs and Cosmetics Act, 1940, as its formulation is based on various ayurvedic ingredients, as specified in the authoritative ayurvedic books as mentioned in Schedule 1 of the Drugs and Cosmetics Act, 1940.
15. It is also stated that 'DABUR RED PASTE' is the Plaintiff's flagship ayurvedic paste. It is stated that the sales figures as of 2022-2023 for the said product is more than 1000 crores, and the advertisement/promotional expenses incurred by the Plaintiff for the same financial year was around 140 crores.
16. The issue in the present suit is in respect of an advertisement published by the Plaintiff for 'DABUR RED PASTE', extracted below:
CS(OS) 737/2023 Page 3 of 7This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 29/11/2023 at 00:12:38
17. In the above advertisement, at the right-hand bottom corner, the Plaintiff claims that its 'DABUR RED PASTE'- Ayurvedic toothpaste is the 'World's No.1 Ayurvedic paste'.
18. This advertisement was challenged by Defendant No.2 - Vi-John Healthcare India LLP, and a complaint was raised by it before the ASCI. The ASCI, vide email dated 13th July, 2023 intimated the Plaintiff regarding the complaint by Defendant No.2. Further, it sought clarifications regarding CS(OS) 737/2023 Page 4 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 29/11/2023 at 00:12:38 the Plaintiff's claim of 'World's No.1 Ayurvedic paste' along with documentary proofs.
19. In response to the said email, the Plaintiff inter alia submitted market research studies conducted by Mordor Intelligence Pvt Ltd, and disseminated the said documents to the ASCI's technical expert. Nevertheless, the CCC of ASCI expressed its dissatisfaction, specifically concerning the authenticity of the data source supporting a claim such as 'World's No.1 Ayurvedic paste', which purports to display global leadership for its ayurvedic toothpaste.
20. The ASCI, vide the impugned order dated 30th September, 2023, directed the Plaintiff to modify its advertisement and restrain itself from publishing it, on the grounds that the said advertisement is misleading and constitutes an unfair portrayal and exaggeration, contrary to Clauses 1.1, 1.4 and 1.5 of the ASCI Code. The relevant extract of the said order is set below:
However, the CCC expressed concerns regarding the authenticity of the data source for a claim like "World's No.1 Ayurvedic Paste", which asserts global leadership. The CCC emphasized that relying on unauthenticated secondary data extracted from public domain with limited brand disclosure, posed reliability issues in the analysis methodology. The CCC felt that the data should have been more rigorously verified, given that many brands do not disclose complete information about themselves in the public domain.
Based on these observations, the CCC concluded that the claim, "World's No.1 Ayurvedic Paste," was inadequately substantiated. The claim is misleading by exaggeration and is likely to lead to widespread disappointment in the minds of consumers. The said CS(OS) 737/2023 Page 5 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 29/11/2023 at 00:12:38 claim contravened Chapter I, Clause 1.1, 1.4 and 1.5 of the ASCI Code. This complaint was UPHELD.
21. Mr. Akhil Sibal, ld. Sr. Counsel for the Plaintiff submits that after receiving the impugned order, the Plaintiff has not published this advertisement. However, he submits that the ASCI is likely to take coercive steps that may be detrimental to its business. This is especially considering that the recommendation given by the ASCI against the Plaintiff's advertisement may be circulated among all ASCI members, and also to the Government authorities.
22. On behalf of the ASCI, Ms. Avni Singh, ld. Counsel submits that she has a preliminary submission that this suit may not fall within the jurisdiction of the Intellectual Property Division (hereinafter, 'IP Division') of the Delhi High Court. Although, the suit was transferred to the IP Division by the ld. Single Judge on 10th November, 2023, she wishes to raise this preliminary objection.
23. Ld. Counsel for the ASCI further submits that the impugned order was communicated to the Plaintiff, who was obligated to reply to the ASCI within 10 days. She further submitted that no such reply appears to have been sent by the Plaintiff.
24. However, at this juncture, ld. Sr. Counsel for the Plaintiff submits that the impugned advertisements for 'DABUR RED PASTE' have not been re- published. He also stated that adequate steps have been taken by the Plaintiff to file the present suit challenging the impugned order.
25. On behalf of ASCI, it is submitted that the recommendations of the CCC of the ASCI have already been communicated to Government authorities, since the 15 days period under had already lapsed. Under such CS(OS) 737/2023 Page 6 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 29/11/2023 at 00:12:38 circumstances, the Court would have to consider the impugned order on merits itself.
26. Accordingly, let summons/notice be issued to all the Defendants.
27. Ms. Avni Singh, ld. Counsel accepts summons on behalf of Defendant No.1. The summons in the suit, and notice of the present application under Order XXXIX Rule 1 & 2 CPC be issued through email to Defendant No.2.
28. Since the Plaintiff is praying for an urgent interim relief, the summons and notice be served by the Registry upon Defendant No.2 through email before the next date of hearing, in order to enable them to be present before the Court.
29. On the next date of hearing, ld. Counsel for the ASCI shall cite the relevant case laws, if any, in support of the preliminary objection that has been raised.
30. Since the Plaintiff has not republished the advertisement, ASCI shall not send the impugned recommendation dated 30th September 2023 to its members, if not already sent. This would ensure that the publications of other advertisements of the Plaintiff are not jeopardised in any manner.
31. ASCI shall place on record a copy of the complaint filed by Defendant No.2.
32. List on 12th December, 2023.
PRATHIBA M. SINGH, J.
NOVEMBER 24, 2023 dj/bh CS(OS) 737/2023 Page 7 of 7 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 29/11/2023 at 00:12:38