Calcutta High Court
Marico Limited vs Dabur India Limited on 20 May, 2025
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION 2025:CHC-OS:79
ORIGINAL SIDE
[COMMERCIAL DIVISION]
(Intellectual Property Rights Division)
BEFORE:
The Hon'ble Justice Ravi Krishan Kapur
IP-COM/64/2024
[Old No. CS/264/2021]
MARICO LIMITED
Vs
DABUR INDIA LIMITED
For the plaintiff : Mr. S.N. Mookherjee Serior Advocate
Mr. Ratnanko Banerji, Senior Advocate
Mr. Arunabha Deb, Advocate
Mr. Soumya Roy Chowdhury, Advocate.
Ms. Ashika Daga, Advocate
Mr. Raunak Das Sharma, Advocate
Ms. Sampurna Mukherjee, Advocate
For the defendant : Mr. Biswarup Debnath, Advocate
Mr. Sudhakar Prasad, Advocate
Judgment on : 20.05.2025
Ravi Krishan Kapur, J.:
1. This is a suit for disparagement and infringement.
2. The plaintiff is a reputed manufacturer and distributor of Fast-Moving Consumer Goods (FMCG). The suit relates to a hair product manufactured by the plaintiff, namely "Nihar Naturals Shanti Badam Amla Hair Oil". The defendant is also a well-known manufacturer of FMCG products. The defendant also manufactures hair oil under the mark of "Dabur". The defendant manufactures two variants of Amla Hair Oil namely "Dabur Amla Hair Oil" and "New Dabur Amla Hair Oil". Both parties are competitors and trade rivals in the FMCG sector.
3. The plaintiff states that the mark NIHAR was conceived and adopted in or about the year 1993 by the predecessor-in-title of the plaintiff. The said 2 2025:CHC-OS:79 mark was acquired by the plaintiff on February 17, 2006 from Hindustan Unilever Limited and is claimed by the plaintiff to have been used since then extensively, continuously and for its NIHAR range of products. The plaintiff states that it is also the registered proprietor of the word mark NIHAR.
4. The plaintiff states that it has also designed distinctive labels for its Nihar Naturals Shanti Badam Amla products from time-to-time which are printed on the distinctive Nihar Amla Bottles and that the current label comprises the mark NIHAR SHANTI, the image of a popular actress and brand ambassador against a background in shades of green and images of badam and amla, all arranged in a distinctive layout, style and manner. The plaintiff further states that the same is an original artistic work and has been granted registration under the Copyright Act, 1957.
5. The plaintiff states that the word "SHANTI" forming a part of the Nihar Registered Marks is also a distinctive element of the Nihar Registered Marks and has also been applied for on January 29, 2001 and has been separately registered by the plaintiff and is claimed to being used since December 1, 2000 extensively, continuously, openly and uninterruptedly.
6. The plaintiff claims that the aforesaid registered trademarks due to their extensive, uninterrupted, open and continuous use have become exclusively associated with the plaintiff.
7. The plaintiff manufactures, sells and distributes "Nihar Naturals Shanti Badam Amla Hair Oil" products in distinctive Nihar Amla Bottles bearing the Nihar registered marks through a huge network of distributors and dealers in various states across India. The plaintiff's "Nihar Naturals 3 2025:CHC-OS:79 Shanti Badam Amla Hair Oil" products sold in the distinctive Nihar Amla Bottles bearing the Nihar registered marks as aforesaid have been extensively sold and advertised and have become extremely successful and popular across categories of consumers both in the urban and the rural markets all over India.
8. On December 24, 2021, the plaintiff was shocked to come across a print advertisement (in Hindi) issued in the physical and online versions of several newspapers by the defendant. The impugned advertisement contains a depiction of the plaintiff's "Nihar Naturals Shanti Badam Amla Hair Oil" bearing the Nihar Registered Marks, the original artistic work comprised in the NIHAR Label and the Distinctive Nihar Amla Bottle next to the defendant's Dabur Amla Hair Oil product and Dabur Red toothpaste. The said advertisement, inter alia, contained the following caption "DABUR AMLA DE SHANTI KE MUKABLE (up to) 50%* ZYADA MAZBOOT BAAL" (in Hindi language) after which, a disclaimer appears to the effect that "...SWATANTRA LAB MEIN KIYE GAYE IN VITRO ADHYAN KE AADHAR PAR MAZBOOT BAALON KE SANDARV MEIN, JO NAHI TOOTTE. UTPAD NIHAR SHANTI AMLA KE SHABD, DEVICE/LABEL MEIN TRADEMARK KE ADHIKAR 'MARICO LIMITED' KE PAAS HAIN. PACK SHOTS UDAHARAN KE LIYE DIKHAYE GAYE HAIN. VASTVIK PACK KA AKAR ALAG HO SAKTA HAIN" (in Hindi language). From the disclaimer it is evident that, the defendant is fully aware that the plaintiff is the owner of registered trademark and the label mark "Nihar".
9. By an interim order dated July 19, 2022, the Court had granted an order of restraint as follows:
4 2025:CHC-OS:79 "a) Injunction restraining the Respondent, its management, members, affiliates, directors, servants, officers, employees, representatives, agents and all other persons claiming through or under it or acting in concert with them or on their behalf or acting on their instructions from in any manner from printing or disseminating or telecasting or broadcasting or publishing or otherwise howsoever communicating to the public or from making available the Impugned Advertisement or any part thereof or any other advertisement of a similar nature in any language or in any manner causing the Impugned Advertisement or any part thereof or any other advertisement of a similar nature to be disseminated or telecast or broadcast or published or communicated or made available to the public or published in any manner or on any mode/media;"
10. Admittedly, despite service of the Writ of Summons on the defendant on January 31, 2022, no Written Statement has been filed by the defendant and the defendant has forfeited its right to file the Written Statement.
11. In light of the aforesaid, the plaintiff prays that the present suit may be decreed by invoking the provisions of Order VIII Rule 10 of the Code of Civil Procedure, 1908 (as amended). In support of such contention, the plaintiff relies on Nirog Pharma Pvt. Ltd. v Umesh Gupta & Anr. (2016 SCC OnLine Del 5961), where it has been held as follows:
"The present suit is also a commercial suit within the definition of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 and it was the clear intention of the legislature that such cases should be decided expeditiously and should not be allowed to linger on. Accordingly, if the defendant fails to pursue his case or does so in a lackadaisical manner by not filing his written statement, the courts should invoke the provisions of Order VIII Rule 10 to decree such cases."
5 2025:CHC-OS:79 Similar views have also been expressed in the following decisions in support of the above proposition: (a) Kaira District Cooperative Milk Producers Union Ltd. and Another v Maa Tara Trading Co. and Others (2022 SCC OnLine Cal 2516), (b) Devans Modern Breweries Ltd. v Mount Everest Breweries Ltd. and Another (2022 SCC OnLine Cal 3514), (c) Shyam Sel and Power Limited v Atibir Industries Company Limited (2023 SCC OnLine Cal 3781) and (d) SRMB Srijan Private Limited v Uma Shankar Jaiswal (2024 SCC OnLine Cal 6157).
12. In such circumstances, and in view of the above, this Court deems this a fit case for invoking the provisions of Order VIII Rule 10 of the Code of Civil Procedure, 1908 (as amended).
13. The moot question which arises for consideration is whether the impugned advertisement disparage the product of the petitioner. A balance has to be struck by an advertiser merely trying to promote its product but not being permitted to brand a competitor's product as bad. In other words an advertiser cannot while saying that his goods are better than his competitors', say that his competitors' goods are bad. If he says so, he really slanders the goods of his competitors. In other words, he defames his competitors and their goods, which is not permissible.
14. Normally, advertisements by their very nature are taken with a finch exaggeration. An amount of hyperbole is to be expected in the description of goods, property and services in advertisements.
15. Comparative advertising is a modern day reality. It has become a strategy now commonly deployed in the advertising and marketing world. Such 6 2025:CHC-OS:79 advertisements constitute commercial speech and are protected under Article 19(1)(a) of the Constitution of India [Horlicks Vs. Heinz 2019(77) PTC 45 at Paras 28-31]. Chapter IV of the Advertising Standards Council of India Code also permits comparative advertisements which includes naming competitors in advertisements. Such advertisements are recognized to be in the interests of competition and public enlightenment. Ordinarily, a certain amount of disparagement is implicit in such advertisements as long as the advertisement is only limited to puffing. However, comparative advertising cannot be permitted to be a means to name and shame a rival's products. In the decision of Reckitt Benckiser India Private Limited Vs. Hindustan Unilever Limited (2021) 88 PTC 584, it has been held that: "In comparative advertising, the comparing of one's goods with that of the other and establishing the superiority of one's goods over the other is permissible. However, one cannot make a statement that a good is bad, inferior or undesirable as that would lead to denigrating or defaming the goods of the other." Similar views have also been expressed in the following decisions Glaxosmithkline Consumer Healthcare Ltd. v. Heinz India (P) Ltd., 2010 SCC OnLine Del 3932 at Para 25 and Colgate Palmolive Company v. Hindustan Unilever Ltd., 2014 (57) PTC 47 [Del] at Para 27.
16. The impugned advertisements are more than puffery. There is a clear reference to the product of the plaintiff in each of the advertisements. The impugned advertisements give an impression that the plaintiff product is inferior and bad in comparison to the defendant's product. The overall message which the defendant has tried to convey through the impugned 7 2025:CHC-OS:79 advertisements is that the plaintiff's product does not serve the purpose which it is intended to serve. The pictorial representation in the impugned advertisements suggests that the plaintiff's product Nihar Naturals Shanti Amla Hair Oil is ineffective, unattractive and useless. In such circumstances, the impugned advertisements disparages and rubbishes the product of the petitioner.
17. In the absence of the Written Statement, there is no question of adjudicating the merits of any defence to the case of the plaintiff.
18. Accordingly, the present suit be decreed in favour of the plaintiff against the defendant in terms of prayer (a) of the plaint which for convenience is set out hereunder:
(a) A Decree of perpetual injunction restraining the defendant, its servants, officers, employees, representatives, agents and all other persons claiming through or under it or acting in concert with them or on their behalf or acting on their instructions in any manner from printing or disseminating or telecasting or broadcasting or publishing or otherwise howsoever communicating to the public or from making available the impugned advertisement or any part thereof or any other advertisement of a similar nature in any language or in any manner causing the impugned advertisement or any part thereof or any other advertisement of a similar nature to be printed or disseminated or telecast or broadcast or published or communicated or made available to the public or published in any manner or on any mode/media;
15. It is clarified that the decree is only limited to the impugned advertisement. It is also clarified that the order of restrain is not restricted to any particular portion of the impugned advertisement but to the impugned advertisement as a whole. The word similar is obviously to 8 2025:CHC-OS:79 be read in the facts and circumstances of the case and in the context of the impugned advertisement.
16. The defendant on instructions submits that it also does not have any objection if decree is passed in favour of the plaintiff on the aforesaid terms.
17. IP-COM 64/2024 being CS-COM/336/2024 and Old No. CS/264/2021 is thus disposed of. Decree be drawn accordingly.
(Ravi Krishan Kapur, J.)