Delhi High Court - Orders
Marico Limited vs Dabur India Limited on 13 July, 2022
Author: Navin Chawla
Bench: Navin Chawla
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 471/2022
MARICO LIMITED ..... Plaintiff
Through: Mr.Chander Mohan Lall, Sr. Adv.
with Mr.Ankur Sangal, Ms.Pragya
Mishra, Mr.Raghav Vinayak Sinha
and Ms.Trisha Nag, Advs.
versus
DABUR INDIA LIMITED ..... Defendant
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
ORDER
% 13.07.2022 I.A.10720/2022 (Exemption)
1. Allowed, subject to all just exception.
I.A.10721/2022 (Exemption for Advance Notice)
2. This is an application seeking exemption from making an advance service of the paper book of the suit to the defendants.
3. Having considered the contents of the application, the same is allowed. The plaintiff is granted exemption from making an advance service of the paper book of the suit to the defendant.
I.A.10717/2022 (Exemption from pre-institution mediation)
4. This application has been filed seeking exemption from undertaking pre-institution mediation under Section 12A of the Commercial Courts Act, 2015.
5. Having perused the contents of the application, the same is allowed.
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:14.07.2022 14:56:37I.A.10718/2022 (Additional Documents)
6. This is an application filed on behalf of the plaintiff seeking to file additional documents.
7. The plaintiff may file the additional documents strictly in accordance with the law.
8. The application stands disposed of.
I.A. 10719/20229. This application has been filed by the plaintiff seeking enlargement of time to file the Court Fee.
10. For the reasons stated in the application, the time to file the Court Fee is enlarged by a period of one week from today.
11. The application stands disposed of.
CS(COMM) 471/2022
12. This suit has been listed on being mentioned for urgent hearing. Let the plaint be registered as a suit.
13. Issue summons to the defendant to be served through all permitted modes, including electronically, returnable on 6th October, 2022.
14. The summons to the defendant shall indicate that the written statement to the plaint shall be positively filed within a period of 30 days from the date of receipt of summons. Along with the written statement, the defendant shall also file the affidavit of admission/denial of the documents of the plaintiff, without which the written statement shall not be taken on record.
15. Liberty is given to the plaintiff to file a replication within a period of 15 days of the receipt of the written statement. Along with the replication, if any, filed by the plaintiff, the affidavit of admission/denial of documents of Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:14.07.2022 14:56:37 the defendant 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.
I.A.10716/202216. Issue notice. On the plaintiff taking steps, let notice be served on the defendant through all permissible modes, including electronically, returnable on 6th October, 2022.
17. Let reply to the application be filed by the defendants within a period of four weeks of receipt of notice. Rejoinder thereto, if any, be filed within a period of three weeks thereafter.
18. It is the case of the plaintiff that the plaintiff is the market leader by volume in the 'AMLA HAIR OIL' segment in the country and currently has a market share by volume of 42.3% for MAT May 2022.
19. The plaintiff states that on 11.07.2022, it was informed by market sources that a WhatsApp message is being circulated by the defendant, which states that print advertisement is likely to be released on 12.07.2022. The WhatsApp message is as follows:
20. The proposed print advertisement is as under:
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:14.07.2022 14:56:3721. The plaintiff is aggrieved by the following factors of the WhatsApp message and the print advertisement:
"a) The Print Advertisement shows a similar bottle as of the Plaintiff's product "Nihar Naturals Shanti Badam Amla Hair Oil" with a big cross in a stark red colour upon it. Thereby, asking the customer to reject the Plaintiff's product.
b) The Print Advertisement begins by threatening and intimidating the consumers with the statement "Yaad rakhna, sasta amla, baalo ko mehnga pade ga", which means that the affordable Amla Hair Oil in comparison to the Defendant's will cause serious harm and damage to the consumers. The 'sasta amla' is clearly a direct reference to the Plaintiff's Product which is offered at an affordable and beneficial price to the consumer for a similar quality of product. The aforesaid is also clear from the fact that the Plaintiff has been running an advertisement campaign for a number of years showing that the Plaintiff's product "Nihar Naturals Shanti Badam Amla Hair Oil" is an affordable and beneficial product in comparison to the Defendant's product due to its lower price and therefore any reference to 'sasta amla' can only be referred to the product of the Plaintiff which is a market leader in this segment.Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:14.07.2022 14:56:37
c) Thereafter, the Print Advertisement states "Saste amla ke mukable, Dabur amla tel ka uttam gadhapan baalo me samae aur unhe banaye 2X tak zada mazboot". It is submitted that the Defendant in its advertisement has claimed that in comparison to 'sasta amla', the product of the Defendant is more efficacious. As established above, the repeated referencing to 'sasta amla' would inevitably be the Plaintiff's product in the minds of the average consumer with imperfect recollection. It is submitted that as per the tests conducted by independent labs, i.e. MS Clinical Research Private Limited and Envirocare Labs Private Limited, it was found that the Plaintiff's Product as well as the Defendant's Product were of similar efficacy. Therefore, the assertion that the product of the Defendant makes hair twice as strong in comparison to 'sasta amla' is false, malicious and misleading.
d) Below the aforesaid statement, an image of the Defendant's Product is reproduced with a tag next to it stating "Asli Amla, Dabur Amla". The said statement is also giving the reference that all other 'sasta amla' are not original and "Dabur Amla Hair Oil" which is an expensive hair oil is the only 'Asli' Amla Hair Oil, which is a completely misleading statement and also disparages the category of Amla Hair Oil which are more affordable and in which category the Plaintiff is the market leader. It is also pertinent to note that Advertising Standards Council of India has found the claim "Asli Amla, Dabur Amla" to be misleading.
e) The Defendant in the Print Advertisement has wrongly claimed themselves as No. 1 Hair Oil since the Plaintiff has a higher market share and also the report which is being relied by the Defendant in the disclaimer of the Print Advertisement is of the year 2020 which cannot be relied in the current year and shows that the entire intention of the Defendant in the Print Advertisement is to mislead the consumer."Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:14.07.2022 14:56:37
22. The learned senior counsel for the plaintiff submits that the plaintiff has been marketing/advertising its products as of being of a more reasonable price to that of the defendant (page 393 of the documents). As a counterblast, the print advertisement of the defendant, which is impugned herein, warns the public that the cheaper oil of the plaintiff will be detrimental to their hair. This is a clear case of disparagement of the plaintiff's product. Clearly, the WhatsApp message being circulated shows the product of the plaintiff alongwith print advertisement, thereby bringing about a clear association of the averments in print advertisement with the product of the plaintiff.
23. In my opinion, the plaintiff has been able to make a good prima facie case in its favour. The impugned WhatsApp message not only refers to the print advertisement but also refers to the plaintiff's product by name. The print advertisement in turn refers to the oil which is cheaper in price, which is how the plaintiff markets its product in comparison to the defendant, thereby again drawing reference to the plaintiff's product. At the same time, the print advertisement states that such cheaper oil would be harmful to hair. Prima facie this would amount to disparaging the goods of the plaintiff.
24. The balance of convenience is also in favour of the plaintiff. The plaintiff shall suffer grave injury in case the ad-interim injunction is not granted in favour of the plaintiff.
25. Accordingly, an ad-interim injunction in terms of prayer nos. (i) and
(ii) of the application is granted in favour of the plaintiff, till the next date of hearing.
26. Compliance with Order XXXIX Rule 3 the Code of Civil Procedure, 1908, be made within a period of two days from today.
Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:14.07.2022 14:56:37Dasti.
NAVIN CHAWLA, J JULY 13, 2022/Arya Signature Not Verified Digitally Signed By:SHALOO BATRA Signing Date:14.07.2022 14:56:37