Delhi High Court
Marico Limited vs Dabur India Limited on 2 June, 2023
Author: Navin Chawla
Bench: Navin Chawla
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 24.03.2023
Date of decision: 02.06.2023
+ CS(COMM) 471/2022
MARICO LIMITED ..... Plaintiff
Through: Mr.Akhil Sibal, Sr. Adv.
& Mr.Chander M Lall,
Sr. Adv. with Mr.Ankur
Sangal, Ms.Pragya
Mishra, Mr.Raghu
Vinayak Sinha &
Ms.Asavari Jain, Advs.
versus
DABUR INDIA LIMITED ..... Defendant
Through: Mr.Rajiv Nayar, Sr. Adv.
with Mr.R. Jawahar Lal,
Mr.Siddharth Bawa,
Mr.Anuj Garg,
Mr.Anirudh Bakhru &
Mr.Mohit Sharma, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
I.As. 10716/2022, 11057/2022, & 12154/2022
1. I.A. No. 10716/2022 has been filed by the plaintiff inter alia
praying for the grant of an ad interim injunction restraining the
defendant, its directors, principals proprietor, partners, officers,
employees, agents, distributors, shopkeepers, franchisees, licensees,
representatives and assigns from communicating to public or
otherwise sharing, forwarding the defendant‟s WhatsApp
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 1 of 58
Advertisement or the defendant‟s Print Advertisement or any part
thereof or any other advertisement of a similar nature in any language
or in any manner disparaging the goodwill and reputation of the
plaintiff‟s product „Nihar Natural Shanti Badam Amla Hair Oil‟ and
the registered Nihar trade marks.
2. On the other hand, I.A. No. 11057/2022 has been filed by the
defendant seeking vacation of the ad-interim order of injunction
granted in favour of the plaintiff vide order dated 13.07.2022.
3. At the outset, it is important to note that the operation of the ad
interim order dated 13.07.2022 was suspended vide order dated
19.07.2022. The plaintiff has thereafter filed I.A. No. 12154/2022
praying that strict action be taken against the defendant for making a
false statement and for the revival of the ad interim injunction on the
impugned Print Advertisement granted on 13.07.2022.
4. As the three applications raise similar issues, they are being
addendum and disposed of by this common order.
5. The impugned WhatsApp Advertisement is reproduced herein
below:
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 2 of 58
6. The impugned Print Advertisement is reproduced herein below:
II. FACTUAL BACKGROUND
i) Case of the plaintiff
7. It is the case of the plaintiff that the plaintiff is one of the
leading players in the Fast Moving Consumer Goods (in short
„FMCG‟) market in India and manufactures as well as markets inter
alia packaged coconut oil, hair oil, personal care product(s) and food
products under its portfolio of various well-known and established
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 3 of 58
household brands such as "Nihar", "Parachute", "Saffola", "Livon",
"Hair & Care", "Silk-N-Shine", among others.
8. The plaintiff-company states that its product(s) and brands have
built up and enjoy a wide, immense, and enviable reputation and
goodwill under its aforesaid brands.
9. The plaintiff states that its mark „NIHAR‟ was originally owned
by Tata Oil Mills Company Ltd., which was manufacturing and
marketing Filter Coconut Oil under the brand "TATA NIHAR". In
1994, the trade mark „NIHAR‟ was acquired by Hindustan Lever
Limited, the predecessor-in-title of the plaintiff. Subsequently, by
virtue of an assignment deed between the plaintiff and its predecessor-
in-interest dated 17.02.2006, the plaintiff-company became the owner
of the trade mark „NIHAR‟.
10. It is asserted by 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 in May
2022. It is further asserted that the plaintiff has gained substantial
goodwill and reputation for its Amla Hair Oil product.
11. The plaintiff states that the plaintiff‟s product „NIHAR‟ had an
annual net revenue of Rs. 52,613.22 Lakhs in the financial year 2021-
22. The plaintiff also states that it has expended advertisement and
sales promotional expenses of Rs.4,164.08 Lakhs for the financial
year 2021-22 for the said product.
12. It is the case of the plaintiff that on July 11, 2022, the plaintiff
came to know about a WhatsApp message being circulated in the
market which was defaming and denigrating the plaintiff‟s product
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 4 of 58
"Nihar Naturals Shanti Badam Amla Hair Oil", and further mentioned
about a disparaging Print Advertisement of the defendant for its
"Dabur Amla Hair Oil" product, which was supposed to be released
on 12.07.2022.
13. The plaintiff, therefore, filed the present suit praying for a
decree of permanent injunction restraining the defendants from
publishing or circulating the impugned WhatsApp and Print
Advertisements.
ii) Case of the defendant
14. It is the case of the defendant that the defendant-company was
founded in 1884, and over the past 137 years, the defendant has
established a reputation for being the premier company,
manufacturing and marketing diverse range of
wellness/healthcare/food products, including DABUR AMLA Hair
Oil in its state-of-the-art manufacturing facilities, under the iconic
trade mark "DABUR".
15. It is asserted by the defendant that the defendant launched its
product DABUR AMLA Hair Oil in the year 1940. It is asserted that
„DABUR AMLA‟ is a flagship brand of the defendant. The defendant
states that the product has yielded a revenue of Rs.67,470 Lakhs for
the Financial Year 2021-2022. The defendant asserts that it has
expended Rs.9,020 Lakhs for the Financial Year 2021-22 towards
advertisement and promotion of the said product.
16. It is the case of the defendant that the Print Advertisement is
legitimate and there is nothing bad or negative intended or conveyed,
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 5 of 58
either expressly or impliedly, about the plaintiff‟s product. It is further
asserted that the advertisement is neither false nor misleading. The
defendant has issued the Print Advertisement for the purpose of
promoting its product by making well-substantiated, statistically
proven and truthful claims, which does not in any manner denigrate or
disparage the plaintiff‟s product, and the same also does not amount to
infringement of the trade mark of the plaintiff.
III. PREVIOUS COURT PROCEEDINGS
17. As noted herein above, this Court, vide its order dated
13.07.2022, had granted an ex-parte ad-interim injunction in favour of
the plaintiff and against the defendant, holding that the impugned
WhatsApp and Print Advertisement prima facie appeared to be
disparaging the goods of the plaintiff.
18. The defendant, thereafter, filed I.A. 11057/2022 seeking
vacation of the ad interim order pointing out alleged concealment and
misstatements made by the plaintiff in the plaint.
19. On 19.07.2022, based on the statement of the learned senior
counsel for the defendant that the defendant had neither circulated nor
had been involved in the circulation of the impugned WhatsApp
Advertisement/message, the learned senior counsel for the plaintiff,
without prejudice to the rights and contentions of the plaintiff, prayed
that the interim order dated 13.07.2022 be suspended with respect to
the impugned Print Advertisement. It was ordered accordingly.
20. The plaintiff, thereafter, filed I.A. 12154/2022, contending that
the WhatsApp message/Advertisement had originated from the
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 6 of 58
defendant alone and the statement made before this Court on
19.07.2022 was incorrect. The plaintiff prayed for the restoration of
the ad interim injunction on the impugned Print Advertisement.
IV. SUBMISSIONS ON BEHALF OF THE LEARNED
SENIOR COUNSEL FOR THE PLAINTIFF
21. The learned senior counsel for the plaintiff submits that the
impugned advertisements are disparaging towards the product of the
plaintiff due to the following factors:
a) The Print Advertisement shows a bottle similar to that 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 consumers to reject the plaintiff‟s product. Further,
the WhatsApp message which was in circulation on 11 July,
2022 depicted a boxing glove knocking down the plaintiff‟s
bottle with a caption "Ab Nihar Shanti amla se jung jeetenge
hum", and urged the shopkeepers to circulate the same by
stating "WhatsApp par share kare" which shows that the
intention of the advertiser was to target the plaintiff and its
product.
b) The Print Advertisement begins by alarming and threatening
the consumers with statement "Yaad rakhna, sasta amla, baalo
ko mehnga pade ga", implying that any affordable Amla Hair
Oil in comparison to the defendant‟s product will cause serious
harm and damage to the consumers. He submits that this is a
direct reference to the plaintiff‟s product as the plaintiff has
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 7 of 58
been running an advertisement campaign for years showing that
plaintiff‟s product is an affordable and beneficial product due to
its lower price. He submits that the above line is not in the form
of an opinion amounting to puffery of its product by the
defendant, but a false declaratory representation of fact that
amounts to disparagement.
c) The Print Advertisement states "Saste amla ke mukable,
Dabur amla tel ka uttam gadhapan baalo me samae aur unhe
banaye 2X tak zada mazboot". The learned senior counsel for
the plaintiff submits that the defendant in its Print
Advertisement has claimed that in comparison to „sasta amla‟,
the product of the defendant is more efficacious. This is a direct
reference to the product of the plaintiff, with a false assertion.
d) 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
Amla hair oil, is the only „Asli‟ Amla Hair Oil, which is a
completely misleading statement, and further disparages the
category of Amla Hair Oils which are more affordable and in
which category the plaintiff is the market leader.
e) The defendant in the Print Advertisement has wrongly
claimed itself as the No. 1 Amla Hair Oil since the plaintiff has
a higher market share and also the report which is being relied
upon by the defendant in the disclaimer of the Print
Advertisement is of the year 2020, which cannot be relied upon
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 8 of 58
in the current year, thereby showing that the entire intention of
the defendant in the Print Advertisement is to mislead the
consumers.
22. The learned senior counsel for the plaintiff submits that, while
the defendant can puff its product, it is not allowed to denigrate the
product of the other companies. He submits that with respect to
disparagement and misleading advertisements, the overall impression
of the impugned advertisements must be considered. In support of his
submissions, he places reliance on the judgements of High Courts in
Gujarat Co-operative Milk Marketing Federation Limited & Ors v.
Hindustan Unilever Limited, 2018 SCC OnLine Bom 7265; Gillette
India Limited v. Reckitt Benckiser (India) Private Limited, 2018
SCC OnLine Mad 1126; Dabur India Limited v. Emami Limited,
2004 (75) DRJ 356; Pepsi Co. Inc. and Ors v. Hindustan Coca Cola
Limited and Another, 2003 SCC OnLine Del 802; Hindustan
Unilever Limited v. Gujarat Co-operative Milk Marketing
Federation Limited & Ors, 2017 SCC OnLine Bom 2572 Dabur
India Limited v. Colgate Palmolive India Ltd., 2004 (77) DRJ 415;
Colgate Palmolive Company & Another v. Hindustan Unilever
Limited, 2013 SCC OnLine Del 4986 and Dabur India ltd. v. M/s
Colortek Meghalaya Pvt. Ltd. & Ors, ILR (2010) IV DELHI 489.
23. The learned senior counsel for the plaintiff further submits that
commercial speech such as the Print Advertisement in the present
case, which is deceptive, unfair, misleading, and untruthful in nature
would be hit by Article 19(2) of the Constitution of India and cannot
be permitted. In support, he places reliance on Tata Press Ltd. v.
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 9 of 58
Mahanagar Telephone Nigam Limited and Others, (1995) 5 SCC
139, and Havells India Ltd. & Anr v. Amritanshu Khaitan & Ors,
2015 SCC OnLine Del 8115.
24. The learned senior counsel for the plaintiff submits that though
the defendant has denied the fact that it has created and circulated the
WhatsApp Advertisement, in view of the following facts and
circumstances, it is clear that the WhatsApp Advertisement was
created and circulated by the defendant:
a) Since the WhatsApp Advertisement contained specific details
of the Print Advertisement, such details, one day prior to the
publication of the Print Advertisement, could have only been
known to the defendant.
b) The plaintiff, in its application, being I.A. No. 12154/2022, has
asserted that it was one of the employees of the defendant who
has circulated the WhatsApp Advertisement, as evidenced by
the screenshot of a WhatsApp message circulated by Mr. Jeevan
Gehlot, who is the Senior Sales Officer of the defendant as per
his LinkedIn page. The WhatsApp message is reproduced
hereinbelow:
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 10 of 58
c) The learned senior counsel for the plaintiff also draws reference
to the email sent by Mr. Akshay Agarwal, the Marketing
Manager of the defendant as per his LinkedIn page, which
contained the impugned WhatsApp Advertisement.
d) It is further submitted by the learned senior counsel for the
plaintiff, that the defendant, in its reply to the application has
not denied the fact that Mr. Jeevan Gehlot and Mr. Akshay
Agarwal are its employees or that the aforesaid circulation of
the WhatsApp Advertisement was done by them.
25. The learned senior counsel for the plaintiff submits that the
defendant has given a wrong statement in Court and made false
averments on oath, claiming that the WhatsApp Advertisement has not
been circulated by it and it has no role in the creation and/or
circulation of the WhatsApp Advertisement. The learned senior
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 11 of 58
counsel for the plaintiff submits that it is a settled proposition of law
that a party approaching the court for vacating the ad interim or
temporary injunction order already granted in the pending suit or
proceedings, must come with clean hands, and not be unfair or
inequitable in its dealings. In this regard, reliance is placed on the
judgement of the Supreme Court in Gujarat Bottling Co. Ltd. and
Others v. Coca Cola Co. and Others, (1995) 5 SCC 545.
26. On the question of suppression and mis-representation in the
plaint, the learned senior counsel for the plaintiff submits that the suit
was filed in a state of emergency. The WhatsApp
Advertisement/message was received by the plaintiff at approximately
8 P.M. on 11.07.2022. Immediate instructions to file the suit were
given to the counsel for the plaintiff at around 9:55 P.M. The plaint
was prepared overnight, however, it could not be listed on 12.07.2022.
Due to such urgent filing, there were certain unintended lapses in the
degree of diligence and care that ought to have been exercised while
filing the suit, however, the same are not sufficient to disentitle the
plaintiff to interim relief.
27. He further submits that there were more than one proceedings
before the Advertising Standards Council of India (hereinafter referred
to as „ASCI‟) between the parties. In the plaint, the plaintiff
incorrectly stated that the ASCI‟s FTCP recommendation dated
13.11.2018 in ASCI Complaint no. 1810 FTCC.13 was upheld in the
Independent Review Panel (hereinafter referred to as „IRP‟) order
dated 21.01.2019. In fact, the IRP, while finding the advertisement of
the defendant to be misleading in all other aspects, as regards the use
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 12 of 58
of the tagline ―Asli Amla, Dabur Amla‖, without getting into the
merits of the same being misleading or not, held that on trade mark
issues, ASCI does not interfere. He submits that the advertisement in
issue in those proceedings, however, reflected the use of the tagline
materially different from its use in the impugned advertisement. He
submits that in fact, there was a previous IRP order dated 05.04.2018
whereby the use of the said tagline was found to be misleading.
Though both the IRP orders were filed along with the plaint, however,
the plaint only refers to one of such orders in which the finding of the
misleading use of tagline was not upheld, while failing to refer to the
other IRP order. He submits that this itself shows that the plaintiff
referred to an order which was, in fact, against the plaintiff, and this
occurred only because of the haste in which the plaint was filed.
28. On the question of the concealment of the relevant orders
passed by the High Court of Bombay, the learned senior counsel for
the plaintiff submits that all pleadings and relevant orders of the said
proceedings had been filed along with the plaint. The High Court of
Bombay decision was based on a different advertisement, which
cannot act as a precedent in the present case, as each advertisement is
to be considered separately. However, the learned senior counsel for
the plaintiff regrets not fully conveying the import of the Bombay
High Court decision in the plaint. He again attributes this omission to
the haste in which the plaint was filed.
29. The learned senior counsel for the plaintiff submits that the
plaintiff has already suffered due to the suspension of the ad interim
order passed by this Court and, therefore, the application of the
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 13 of 58
plaintiff should be considered on merits. He submits that even public
interest would demand that the application of the plaintiff is
considered on merit rather than being dismissed only on account of a
bona fide mistake.
V. SUBMISSIONS ON BEHALF OF THE LEARNED
SENIOR COUNSEL FOR THE DEFENDANT
30. The learned senior counsel for the defendant, on the other hand,
submits that the plaint suffers from grave misstatements and
concealments in relation to the proceedings before the High Court of
Bombay and before the ASCI. He submits that this itself is a sufficient
ground to reject the prayer for interim relief filed by the plaintiff. In
support of his submission, the learned senior counsel for the defendant
has placed reliance on the following judgements:
i. M/s Seemax Construction (P) Ltd v. State Bank of India and
another, 1991 SCC OnLine Del 668;
ii. K. Jayaram & Ors v. Bangalore Development Authority &
Ors, 2021 SCC OnLine SC 1194;
iii. Reckitt Benckiser (India) Ltd. v. Naga Ltd and Ors., 2003 (68)
DRJ 441;
iv. Charanjit Thukral and Anr v. Deepak Thukral and Anr, 2010
SCC OnLine Del 2517
v. Warner Bros. Entertainment Inc. & Anr v. Harinder Kohli &
Ors, ILR (2009) I Delhi 722;
vi. Yashoda (Alias Sodhan) v. Sukhwinder Singh and Ors, 2022
SCC OnLine SC 1208.
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 14 of 58
31. In relation to the proceedings before the High Court of Bombay,
he submits that an advertisement similar to the one challenged in the
present Suit, was challenged by the plaintiff before the High Court of
Bombay. With prejudice to the rights of the defendant, the defendant
offered to and later changed the shape of the bottle depicted in the
advertisement impugned before the High Court of Bombay.
Thereafter, the High Court of Bombay held that the advertisement was
not disparaging in nature of the plaintiff‟s product. He draws my
attention to the orders dated 04.12.2019 and 14.02.2020 passed in
those proceedings. He submits that in spite of the above orders, the
plaintiff falsely sought to convey an impression in the plaint that the
application for interim injunction was only „disposed of‟ by the High
Court of Bombay, without fully disclosing the orders. He submits that
mere filing of the orders in a bunch of documents filed alongwith the
plaint, especially when the Suit was listed on being mentioned for
urgent hearing, cannot absolve the plaintiff of such concealment and
misstatement.
32. He submits that similar misstatement has been made by the
plaintiff with respect to the proceedings before the ASCI, wherein no
order of injunction was passed with respect to the tag line of the
defendant- "Asli Amla, Dabur Amla", finding the same to be a
registered trade mark of the defendant. He submits that, in fact, the
plaintiff has intentionally concealed from this Court that the tag line is
a registered trade mark of the defendant.
33. The learned senior counsel for the defendant submits that the
ASCI, vide its recommendation dated 10.01.2018 passed in Complaint
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 15 of 58
no. 1801-FTCC.15, had rejected a challenge to an advertisement
similar to the one impugned in the present Suit. The IRP, vide order
dated 05.04.2018, rejected the challenge to the order on the use of the
word „sasta‟ in the advertisement, while injuncting the defendant from
using "to koi bhi sasta tel nahi, sirf Dabur amla. Asli Amla, Dabur
amla.". He submits that in the plaint, however, only selective
disclosure has been made by the plaintiff regarding these proceedings.
34. The learned senior counsel for the defendant makes a similar
complaint of concealment and misstatement as far as the facts in
relation to Complaint no. 1911-FTCC.10 and ASCI order dated
05.12.2019 are concerned. The learned senior counsel for the
defendant submits that the effect and repercussion of the above
concealments/misstatements cannot be washed away by the plaintiff
by blaming them on the urgency in filing of the Suit.
35. He submits that the plaintiff is, in fact, indulging in forum
shopping. He submits that no reason has been given by the plaintiff
for not filing the present Suit before the High Court of Bombay, where
its challenge to an earlier similar advertisement is pending
adjudication. In this regard the learned senior counsel for the
defendant has placed reliance on the judgements of the Supreme Court
in UoI & Ors v. Cipla Ltd & Anr, (2017) 5 SCC 262; and India
Household & Healthcare Ltd. V. LG Household & Healthcare Ltd,
(2007) 5 SCC 510; and the judgement of this Court in Allied Blenders
& Distillers Pvt. Ltd. & Ors v. Amit Dahanukar & Anr, (2019) 261
DLT 692.
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 16 of 58
36. On merits, the learned senior counsel for the defendant submits
that the impugned Print Advertisement is neither disparaging the
plaintiff‟s product nor is it misleading. He submits that the
advertisement does not refer to the plaintiff‟s product at all. He
submits that „sasta‟ refers not merely to the price, but also to the
quality. There is, therefore, no disparagement of a class as a whole, as
contended by the plaintiff.
37. On the WhatsApp message/Advertisement, placing reliance on
Puro Wellness Pvt. Ltd. v. Tata Chemicals Ltd., 2019 SCC OnLine
Del 10766, he states that each impugned material is to be
considered/judged independently on its own merit and not jointly. He
submits that the defendant denies that the WhatsApp message was
created by the defendant. He submits that on the other hand, the
defendant has placed on record the email correspondence to its
advertising agency advising that no comparison with plaintiff‟s
product is to be made. Further, the defendant is ready to suffer a
decree against the Whats App Advertisement.
VI. ANALYSIS AND FINDINGS:
38. I have considered the submissions made by the learned senior
counsels for the parties.
(i) Suppression and Misrepresentation
(a) Bombay High Court
39. Admittedly, the plaintiff, prior to filing of the present suit, had
challenged an earlier advertisement of the defendant before the High
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 17 of 58
Court of Bombay in the form of a suit being Commercial IP Suit (L)
No.1262 of 2019. The advertisement impugned in the said suit is as
under:
40. At the time of hearing of the ad interim application, the
defendant made a „with prejudice‟ offer to change the shape of the
bottle with which the comparison was being made. The defendant,
thereafter, came up with a modified advertisement, which is
reproduced as under:
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 18 of 58
41. The learned Single Judge of the Bombay High Court thereafter
considered the application of the plaintiff herein for grant of an ad
interim injunction. By the order dated 04.12.2019, the same was
declined by the learned Single Judge in the High Court of Bombay,
inter alia observing as under:
―8 These cases do not support the Plaintiff
in our case. In our case, as I have noted
above, the shape, size, contours or colour of
the bottle of the disparaged product in the
impugned advertisement do not, in any real
sense, evoke the memory of the Plaintiff's
product. Even the reference to ―Cheap Amla
Hair Oil' cannot be said to evoke the memory
of the Plaintiff's product. There are, as we
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 19 of 58
have noted above, several manufacturers and
traders in the market, who are marketing amla
hair oils, which are priced lesser than the
Defendant's hair oil. It is difficult to hold, as
noted above, that lesser priced products, as a
class, have been sought to be disparaged in
the advertisement. If it is the Plaintiff's case
that ‗cheap hair oil' is indeed an idea
associated with their products, they will have
to make out such a case at the trial of the suit
or prima facie even at the hearing of the
Interim Application. On a mere say so, and on
the basis of materials placed before this court
at this ad-interim stage, it is not possible to
hold that the reference to ‗cheap hair oil'
evokes the memory of the Plaintiff's hair oil.
Though the word 'cheap' used in the
advertisement has connotations with reference
to both ‗quality' and ‗price', it is difficult to
hold that the word ‗cheap' is used only in the
sense of lesser price and in no other sense or
that, in doing so, the memory evoked is of the
Plaintiff's products, thereby disparaging the
same as being of substandard quality.‖
42. The ad interim application was thereafter disposed of by the
learned Single Judge of the High Court of Bombay vide its order dated
14.02.2020, observing as under:
―8. First of all, this Court cannot persuade
itself to believe that in substance, the
impression sought to be conveyed to an
ordinary man on the street or buyer of the
goods in question is that all products of ‗Amla
Hair Oil', which are priced lesser than the
Plaintiff's ‗Amla Hair Oil', are inferior in
quality or that they lead to hair fall or hair
breakage. That certainly, in my opinion, is not
the impression meant to be conveyed or is
likely to be conveyed to a reasonable man on
the street or an ordinary/y consumer of the
subject goods. The Defendant, of course, as I
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 20 of 58
have noted above, may be said to have meant
to use the words ‗cheap oil' or ‗sasta tel' as
suggestive of lesser price and not necessarily
of inferior quality. It is, certainly arguable, as
Mr. Tulzapurkar suggests, that the word here
conveys both meanings; it may, in fact, in that
sense have been used tongue in cheek; but it,
by no means, suggests that what the
advertisement disparages are products of
lesser price as a class. What the
advertisement, taken at its plain face value,
conveys is that there could be products which
are cheap (that is, of lesser price), but the
consumers better beware - these might be
cheap, not just in terms of price, but even in
terms of quality; these might yet be harmful
and lead to conditions such as hair fall or hair
breakage. In comparison, the Plaintiff's
products are shown as ‗True Amla', that is to
say, of a purer variety. There is no
disparagement in this of the whole range of
cheaper (in terms of price) variety of amla
hair oil generally, much less of any one
product in particular, or, for that matter, the
Plaintiff's amla hair oil. All that this suggests
is that the Defendant, in its advertisements,
calls upon consumers to pay more attention to
quality rather than go merely by price. The
disparagement, in other words, if at all there is
any, is of products, which are ‗cheap', not just
in terms of price, but also of quality. It may
well be that both senses of the word ‗cheap' or
‗sasta' are invoked in the present case to
convey the above. Ambivalence such as this,
rejected in the copy, actually lends literary
merit or artistic value or adds punch to the
advertisement. There is no suggestion here, as
Mr. Tulzapurkar suggests, that all products of
lesser price are generally inferior, much less
that the Plaintiff's product in particular is
inferior.
xxxxxx
10. .............. As I have noted above, it is
difficult to hold that what are disparaged in
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 21 of 58
the impugned advertisement are lesser price
products as a class. So also, the Plaintiff has
not shown at this prima facie stage that the
phrases 'cheap hair oil' or ‗sasta tel' used in
the advertisement were indeed an idea
associated solely with the plaintiff's product. It
is difficult to say, on the basis of materials
produced before the court, that the reference
to 'cheap hair oil' or ‗sasta tail' evokes the
memory of the plaintiff's hair oil.‖
43. I am informed that it is only after the suspension of the interim
order passed in the present suit, that the plaintiff, belatedly, has
challenged the order dated 14.02.2020 passed by the learned Single
Judge of the High Court of Bombay in the form of an appeal.
44. As far as the above litigation is concerned, the plaintiff in its
plaint of the present suit has stated as under:
―BOMBAY ACTION
a. Suit before the Bombay High Court titled
as ‗Marico Limited Vs. Dabur India Limited'
being COMIP/96/2021 filed by the Plaintiff in
2019- The said proceedings was filed by the
Plaintiff against the Defendant against an
advertisement which showed a similar bottle
as of the Plaintiff's product Nihar Shanti Amla
Hair Oil next to a fictitious consumer with a
brush in one hand and a tuft of hair in another
along with the following caption
"SAAWDHAAN.. " "SASTEY AMLA TEL SE
MERE BAAL TOOTNEY AUR JHADNEY
LAGEY THEY ISILIYE HAIR OIL KE SAATH
KOI SAMJAUTHA NAHI, MERE LIYE SIRF
ASLI AMLA, DABUR AMLA".
b. That during the hearing of the interim
injunction application in the said proceedings,
Defendant proposed to change the size and
shape of the bottle reflected in the said
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 22 of 58
advertisement. The interim injunction
application was disposed off by the Hon'ble
Court vide Order dated 14 February 2020.
The said suit proceedings are pending before
the Hon'ble Bombay High Court for final
adjudication. Further, as per the best
knowledge of the Plaintiff the advertisement
impugned in the said Suit was discontinued by
the Defendant.‖
45. A reading of the above extracts from the plaint would show that
the plaintiff has made no reference to the order dated 04.12.2019 of
the High Court of Bombay. Even the reference to the order dated
14.02.2020 conceals more than what it reveals. An impression is
sought to be created that the interim application was disposed of by
the High Court as the defendant proposed to change the size and shape
of the bottle reflected in the advertisement impugned therein and that
the said advertisement was discontinued by the defendant thereafter.
** This is the half-truth.
46. The findings of the High Court of Bombay in the orders dated
04.12.2019 and 14.02.2020, which have been extracted hereinabove,
had a vital bearing on the adjudication of the application seeking
interim relief filed by the plaintiff along with the present suit. It was
incumbent on the plaintiff to, therefore, clearly disclose the said
proceedings in a fair and transparent manner. The plaintiff is clearly
guilty of concealment and misrepresentation/misstatement of facts
with respect to the proceedings before the High Court of Bombay.
47. As noted hereinabove, the learned senior counsel for the
plaintiff, while admitting the above folly, has tried to explain the same
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 23 of 58
by stating that each advertisement has to be considered on its own
merit. While there is no dispute on this proposition of law, the fact
remains that the complaint of the plaintiff in the suit before the High
Court of Bombay was almost similar if not identical to the present
suit. It was, therefore, incumbent on the plaintiff to have fully and
truthfully disclosed the orders of the High Court of Bombay. In fact,
the plaintiff itself disclosed the High Court of Bombay proceedings by
prefacing it as under:
―50. That the Defendant has time and again
published disparaging advertisement against
the Plaintiff's Product by making false and
baseless statements. The history of the
proceedings before different high courts
between the parties, which deals with issue of
disparagement for the identical products are
provided as under:‖
48. A reading of the above would show that when it suited the
plaintiff, the plaintiff wanted to take advantage of the proceedings
before the High Court of Bombay. It is only when its folly was caught
and highlighted by the learned senior counsel for the defendant, that
the plaintiff is now seeking refuge of the principle of law that each
advertisement must be considered on its own merit and by contending
that the proceedings before the High Court of Bombay would not have
any relevance to the present suit. The plaintiff cannot approbate and
reprobate and resile out of its own stand taken in the present
proceedings.
(b) ASCI Action
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 24 of 58
49. There have been multiple actions taken by the plaintiff before
the ASCI. On being questioned regarding the concealment and
misrepresentation of such proceedings, the plaintiff sought to explain
the same away by way of a note, which for convenience is reproduced
hereinbelow:
S.No. Details of the Allegation of the Response of the Plaintiff
Document Defendant
1. ASCI Complaint These In these proceedings, the
No.1801 FTCC. 15 proceedings claim of ‗Asli Amla Dabur
before ASCI were Amla' was found to be
Ad-29 December suppressed. misleading. (Para 32 of IRP
2017-1099-1101, Vol Order -1129, Vol VI
VI, Plaintiff Plaintiff Documents dated
Documents dated 25.07.2022)
25.07.2022
Therefore, there was no
Complaint-2 January reason for the Plaintiff to
2018- 1102-1107, suppress the proceedings.
Vol VI Plaintiff The failure of the plaintiff
Documents dated to rely on the said
25.07.2022 favourable proceedings in
the plaint, if anything
highlights the haste with
which the suit was
prepared.
FTCP-10 January ASCI held that the The Defendant has not
2018-1110-1111, Vol claim of ‗2X disclosed to the court that
VI, Plaintiff strength' by the the composition of Dabur
Documents dated Defendant was Amla hair oil which
25.07.2022 substantiated supported the claim of 2X
based on strength in that ad is no
IRP -5 April 2018- technical reports. longer marketed or sold by
1112-11129, Vol VI (Para 30, IRP the Defendant. (Old
Plaintiff Documents Order Composition-IRP Order at
dated 1112@1128, Vol pg. 1122, Vol VI Plaintiff
25.07.2022/179, Vol VI Plaintiff Documents dated
I, Plaintiff Documents Documents dated 25.07.2022 and current
dated 12.07.2022 25.07.2022) compositions at Para 101,
Pg 54, Written Statement)
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 25 of 58
Hence, the test reports
before ASCI and the ASCI
finding in this regard is not
material to the Defendant's
in the market today.
For the products in the
market today, the
Defendant has not been
able to show any technical
report to support the claim
of 2X strength.
ASCI held sasta The impugned
amla is not advertisement before ASCI
disparaging. contained the following
(Para 29, IRP statement:
Order at pg 1128,
Vol VI Plaintiff ―Saste tel ke behkawe mein
Documents dated na aayein, chuniye ussee jo
25.07.2022) de quality ka vada, na ki
use jisme ho tel zyada‖
The aforesaid statement
was found to be a factual
statement as the Defendant
had established that its
product provided better
tensile strength based on
higher content of vegetable
oil in the Defendant's
product. Hence, this was
found to be not
disparaging. (para 30, IRP
Order at pg. 1128, Vol VI
Plaintiff Documents dated
25.07.2022)
Further, ASCI also finds
that the use of the word
Sasta is not disparaging
because other Amla hair
oils use more quality of
mineral oil as compared to
vegetable oil which costs
double the price of mineral
oil and hence other parties
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 26 of 58
could sell their oil at a
cheaper price as compared
to the Defendant's. (Para
29, IRP Order at pg 1128,
Vol. VI plaintiff documents
dated 25.07.2022)
In the present case,
however, the term ‗Sasta' is
evocative of the Plaintiff
because the thrust of the
Plaintiff's advertising
campaign has been it is
cheaper than the
Defendant's Amla hair oil.
In any event, the impugned
ad disparages the class of
cheaper hair oils as a
whole, of which the plaintiff
is the market leader. (para
23 (b), Pg 34-35, Plaint;
also see Plaintiff's ads at
pgs. 393-400 of Plaintiff's
documents filed with the
suit)
2. ASCI Complaint Plaintiff, in the The FTCP recommendation
No.1810 FTCC. 13- plaint, has found the ad impugned
29 October 2018 misrepresented therein to be misleading on
that the FTCP several counts. One of the
Ad-17 October 2018- recommendation those was that ‗Asli Amla,
1130-1132, Vol. VI, dated 13.11.2018 Dabur Amla' was
Plaintiff Documents was upheld in the misleading. In the IRP,
dated IRP vide order dt. vide order dated 21
25.07.2022/160, Vol 21.1.2019 January 2019, without
I, Plaintiff Documents getting into merits of the
dated 12.07.2022 tagline being misleading or
not, it was held that on
Complaint-29 trade mark issues, ASCI
October 2018-1134- does not interfere.
1165, Vol. VI, (IRP@1171, Vol VI,
Plaintiff Documents Plaintiff Documents dated
dated 25.07.2022 25.07.2022)
Pertinently, the aforesaid
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 27 of 58
order in IRP upheld that the
advertisement of the
Defendant was misleading
in all other respects. (IRP
@1170, Vol VI, Plaintiff
Documents dated
25.7.2022)
164, Vol I, Plaintiff
Documents dated
12.07.2022
FTCP-13 November
2018- 1166-1167, Vol
VI, Plaintiff
Documents dated
25.07.2022/197, Vol
I, Plaintiff Documents
dated 12.07.2022
IRP - 21 January
2019 - 1170-1171,
Vol VI, Plaintiff
Documents dated
25.07.2022/201, Vol
I, Plaintiff Documents
dated 12.07.2022
The Plaint does The use of the term ‗Asli
not disclose that Amla Dabur Amla' in the
‗Asli Amla Dabur Advertisement before ASCI
Amla' is a was being used in a trade
registered trade mark sense.
mark.
The manner in which the
tag line is used in the
impugned Print
Advertisement is not trade
mark use and is clearly to
disparage and convey the
message that it is the only
genuine amla hair oil.
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 28 of 58
(Para 22, Pg 54,
Replication)
A trade mark registration is
immaterial and no defence
to disparaging use.
3. ASCI Complaint Plaintiff has ASCI Guidelines state that
Compliant No.1911 suppressed this any claim on the basis of an
FTCC.10- 26 proceeding where award/ranking can only be
November 2019 ASCI allows the relied upon for a year after
Defendant to use the award/ranking.
Ad-16 November its World's No.1 (Guideline 3, ASCI
2019 - 1172, Vol VI, Hair Oil claim. Guidelines for Usage of
Plaintiff Documents Awards/Rankings in
dated 25.07.2022 Advertisements)
FTCP - 5 December The World No.1 claim
2019-1177-1178, Vol before ASCI was on the
VI, Plaintiff basis of 2018 report (@pg
Documents dated 1177, Vol VI, Plaintiff's
25.07.2022 docs dt. 25.7.22) and the
same was of no relevance in
2022 at the time of filing of
the suit. (Para 12(d), Pg
13-14, Replication)
50. The above explanation, however, does not cut much ice with
this Court. As far as the disclosure of ASCI actions of the plaintiff is
concerned, the plaintiff had stated as under in its plaint:
―ASCI ACTION
a. That the Plaintiff filed a complaint
bearing reference No: 1810-FTCC.13 before
ASCI, on 29 October 2018, against a
television commercial of the Defendant,
wherein the Defendant made several
statements and had sought to disparage other
AMLA hair oils by inter alia issuing a message
to the consumers that the usage of the same
leads to hair breakage and referring to them
as "sasta amla" / cheap amla oils. The said
complaint of the Plaintiff was upheld by ASCI
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 29 of 58
and a decision / recommendation dated 13
November 2018 including those in respect of
strength and efficacy of the Plaintiff's product.
It is pertinent to note that even in the
advertisement which was before ASCI, the
Defendant had made a claim of ―Asli Amla,
Dabur Amla‖ and their was held that the
Defendant cannot use the same. Thereafter,
the said order was challenged by the
Defendant before an Independent Review
Panel (IRP). The recommendation /decision
passed by the ASCI was upheld vide order
dated 21 January 2019.‖
51. The plaintiff has, therefore, disclosed only the complaint
No.1810-FTCC.13 in the plaint, stating that the said complaint was
upheld by ASCI vide its decision/recommendation dated 13.11.2018
including on the aspect of strength and efficacy of the plaintiff‟s
product making specific reference to the tagline of the defendant "Asli
Amla, Dabur Amla". The plaintiff asserts that the defendant was
injuncted from using the same. The plaintiff further stated that the
decision of ASCI has been upheld by the Independent Review Panel
("IRP") vide its order dated 21.01.2019.
52. The above representation is incorrect. In fact, the IRP vide its
order dated 21.01.2019 had rejected the complaint of the plaintiff
against the tagline "Asli Amla, Dabur Amla" holding that the
defendant had produced a Trade Mark Certificate with regard to the
same and on trade mark issues, ASCI does not interfere. It was
observed that the plaintiff can, therefore, approach the appropriate
authority on this issue. The reference to this order in the plaint was
therefore, incorrect.
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 30 of 58
53. The plaintiff made no disclosure of the ASCI complaint
no.1801-FTCC.15 in the plaint. By an order dated 10.01.2018, ASCI
had rejected the complaint of the plaintiff against the claim of the
defendant of „Upto 2X hair strength‟ and of disparagement. In a
review filed by the plaintiff, the IRP vide its order dated 05.04.2018,
relying upon an earlier order dated 11.06.2010, dismissed the review
against the „2X‟ claim of the defendant.
54. On the issue of „sasta‟, the IRP observed as under:
―28. In the present case the advertiser has
not made reference to any particular rival
product, much less to the complainant's
product. The case of the advertiser is that both
the advertiser and the complainant have
almost equal market share in terms of volume,
both covering 80% market share in the
aggregate, and, therefore, reference to "aam
saste amla tel" was to the large number of
other amla hair oils in the fragmented balance
20% share.
29. Even otherwise, the word "sasta" would
mean " low cost " or " inexpensive", and not
necessarily "cheap". The complainant's
representatives did not dispute the advertiser's
assertion that the vegetable oil content in the
complainant's product is half the vegetable oil
content in the advertiser's product and that
vegetable oil costs almost twice as much as
mineral oil, which the complainant and others
use in their products in double proportion and,
therefore, the complainant and others are in a
position to offer their amla hair oil at almost
half the price of the advertiser's product. I am,
therefore, of the view that referring to other
amla hair oils as "sasta" does not amount to
disparagement.
In view of the above conclusion, no discussion
is called for with reference to the decisions in
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 31 of 58
Hindustan Unilever case (supra) and the
Reckitt Colmann case (supra).‖
55. It was only in relation to the following tagline that the IRP
intervened:
"To koi bhi aam sasta
tel nahi, sirf Dabur amla.
Asli amla, Dabur amla. "
56. It is important here to note that the issue of the tagline "Asli
Amla, Dabur Amla" being a registered trade mark of the defendant
was not an issue before the IRP. In any case, what was restrained was
a complete tagline reproduced herein above.
57. The plaintiff, while disclosing one proceeding before the ASCI,
cannot conceal the proceedings which held its claims to be
unsubstantiated. This is a clear instance of the suppression of material
facts by the plaintiff.
58. The plaintiff had also filed another complaint before the ASCI
against another advertisement of the defendant, being Complaint
no.1911-FTCC.10, wherein the use of the defendant of „World‟s no.1‟
was upheld by the ASCI vide its order dated 25.07.2022.
59. The submission of the learned senior counsel for the plaintiff
that the above proceedings were not disclosed due to urgency in filing
of the present suit and that, in fact, orders which were beneficial to the
plaintiff were also not referred, cannot be accepted. These were
proceedings which were necessary and should have been disclosed by
the plaintiff in the plaint, specially when the plaintiff was making a
reference to one of these proceedings albeit in an incorrect manner.
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 32 of 58
Urgency in filing cannot be a guru mantra for washing away the sin of
concealment.
60. In M/s Seemax Construction (P) Ltd. (supra), this Court has
observed as under:
―10. The suppression of material fact by itself
is a sufficient ground to decline the
discretionary relief of injunction. A party
seeking discretionary relief has to approach
the court with clean hands and is required to
disclose all material facts which may, one way
or the other, affect the decision. A person
deliberately concealing material facts from
court is not entitled to any discretionary relief.
The court can refuse to hear such person on
merits. A person seeking relief of injunction is
required to make honest disclosure of all
relevant statements of facts otherwise it would
amount to an abuse of the process of the court.
Reference may be made to decision in The
King v. The General Commissioners for the
purposes of the Income-tax Acts for the
District of Kensingion, 1917 (1) King's Bench
Division 486 where the court refused a writ of
prohibition without going into the merits
because of suppression of material facts by the
applicant. The legal position in our country is
also no different. (See : Charanji Lal v.
Financial Commissioner, Haryana,
Chandigarh, AIR 1978 Punjab and Haryana
326 (1711)). Reference may also be made to a
decision of the Supreme Court in Udai Chand
v. Shankar Lal, . In the said decision the
Supreme Court revoked the order granting
special leave and held that there was a
misstatement of material fact and that
amounted to serious misrepresentation. The
principles applicable are same whether it is a
case of misstatement of a material fact or
suppression of material fact.‖
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 33 of 58
61. I would not like to multiply authorities on the above proposition
that it is too well settled beyond doubt. A party seeking discretionary
relief in form of an ad interim injunction, must approach court with
clean hands and with full and fair disclosure of all material and vital
facts and document, failing which, concealment/misstatement itself is
a sufficient ground for the court to deny the discretionary relief,
without going into the merits of the dispute.
62. In view of the above settled principal of law, the present
application is, in fact, liable to be dismissed only on the ground of
concealment and suppression of facts.
63. The mere fact that the interim order granted to the plaintiff was
suspended on account of such concealment, cannot absolve the
plaintiff of the repercussion of the concealment and misstatement of
facts. The plaintiff cannot make a virtue out of the fact that when
confronted with allegation of concealment, it conceded to suspension
of the benefit obtained through such concealment.
64. Similarly, the mere fact that the plaint was filed in urgency,
cannot absolve the plaintiff of making a truthful, honest and complete
disclosure of facts.
(ii) Forum Shopping
65. I also find merit in the submission of the learned senior counsel
for the defendant that the plaintiff has indulged in forum shopping. As
noted hereinabove, the plaintiff has filed an earlier suit before the
High Court of Bombay almost on similar averments and complaints
against a similar advertisement issued by the defendant. The High
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 34 of 58
Court of Bombay vide its orders dated 04.12.2019 and 14.02.2020
found that the plaintiff has not been able to make out a prima facie
case in its favour for grant of an ad interim injunction. The plaintiff
has not disclosed any reason why the present suit could not be filed
before the High Court of Bombay, especially when the High Court
was already seized of a similar dispute. I must herein clarify that this
issue is not being considered on the test of lack of territorial
jurisdiction but only on the question of forum convenience and on
account of prima facie opinion of this Court that the plaintiff
intentionally avoided filing the present suit before the High Court of
Bombay due to the earlier orders passed by the High Court of Bombay
in a case with similar issues.
66. In Cipla Ltd. (supra), the Supreme Court held that forum
shopping takes several hues and shades. A classic example of forum
shopping is when a litigant approaches one Court for relief but does
not get the desired relief and then approaches another Court for the
same or similar relief. Another example can be where circumstances
are created by one of the parties to the dispute to confer jurisdiction on
a particular High Court. Yet another form of forum shopping is by
approaching different Courts for the same relief by making a minor
change in the prayer clause of the petition. The Supreme Court held
that the Court is required to adopt a functional test vis-a-vis the
litigation and the litigant, and what is to be seen is whether there is
any functional similarity in the proceedings between one Court and
another or whether there is sort of subterfuge on the part of the
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 35 of 58
litigant, to determine if the litigant is indulging in forum shopping or
not.
67. In India Household & Healthcare Ltd. (supra), it has been held
that the doctrine of comity or amity requires a Court not to pass an
order, which would be in conflict with another order passed by a
competent Court of law. The Supreme Court quoted with the approval
from the Treatise on the Law Governing Injunctions by Spelling and
Lewis, as under:
―A Treatise on the Law Governing Injunctions
by Spelling and Lewis‖
―Section 8, Conflict and loss of jurisdiction -
Where a court having general jurisdiction and
having acquired jurisdiction of the subject-
matter refuse to interfere by issuance of a
second injunction. There is no established
rule of exclusion which would deprive a court
of jurisdiction to issue an injunction because
of the issuance of an injunction between the
same parties appertaining to the same subject-
matter, but there is what may properly be
returned a judicial comity on the subject. And
even where it is a case of one court having
refused to grant an injunction, while such
refusal does not exclude another coordinate
court or Judge from jurisdiction, yet the
granting of the injunction by a second Judge
may lead to complications and retaliatory
action.......‖
68. In fact, in similar circumstances, this Court in Allied Blenders
and Distillers Pvt. Ltd. & Ors. (supra), observed as under:
―32. The facts of the present case are
glaring. The parties to the suit in Bombay and
the present suit are virtually identical/have a
commonality of interest. The said suit in
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 36 of 58
Bombay was filed in 2009. Interim injunction
application was dismissed on 22.02.2011 and
a clear prima facie findings of fact were
recorded in favour of the defendants and
against the plaintiffs. It is thereafter that the
present suit has been filed on 10.10.2014. The
plaintiffs seek interim orders from this court
despite being declined relief by the Bombay
High Court.
33. Keeping in view the legal position it is
manifest that this court has to give due
deference to the enunciation made by another
court especially when the litigants are the
same. In my opinion, the above legal
proposition squarely applies to the facts of the
case. The plaintiff having filed suit based on
identical facts before the Bombay High Court
and having been declined an interim
injunction cannot now try to overreach the
said order of the Bombay High Court and file
the present suit in Delhi High Court seeking
an interim injunction. If this court were to
agree with the contentions of the plaintiff and
were to pass an interim order in favour of the
plaintiff it would be passing an order wholly
contrary to the order of the Bombay High
Court."
69. In my view, the above judgment squarely applies to the facts of
the present case as well. As noted hereinabove, the complaint of the
plaintiff, though in relation to a different advertisement, is almost
similar to the one raised and pending adjudication before the High
Court of Bombay, wherein interim relief was refused to the plaintiff.
The plaintiff not only concealed but also misstated the orders passed
in those proceedings. In any case, the plaintiff has not given any
reason why it chose not to invoke the jurisdiction of the High Court of
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 37 of 58
Bombay, but instead, chose this Court as a preferred Court of
jurisdiction. I prima facie find that the plaintiff has indulged in forum
shopping, which would itself disentitle the plaintiff to any relief.
(iii) Disparagement
70. Before I consider the two impugned advertisements of the
defendant on merit, I shall first remind myself of the tests laid down
for judging the claim of injunction on allegation of disparagement.
71. First of all, as held by the Supreme Court in Tata Press (supra),
"Commercial Speech" is a part of freedom of speech and expression
guaranteed under Article 19(1)(a) of the Constitution of India.
72. In Pepsi Co. (supra), a Division Bench of this Court has held
that while deciding the question of disparagement, one has to keep the
following factors in mind, namely:
(i) intent of the commercial;
(ii) manner of the commercial;
(iii) story line of the commercial and the message sought to
be conveyed by the commercial.
73. It was held that out of the above factors, "manner of
commercial" is very important. If the advertisement in question is
ridiculing or condemning the product of the competitor, then it
amounts to disparagement, but if the impugned commercial is merely
stating the qualities of one‟s own product as being better or best
without derogating other‟s product then that is not actionable. Mere
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 38 of 58
puffing of goods is not actionable. Tradesman can say his goods are
best or better, but by way of comparison, the tradesman cannot slander
or defame the goods of the competitor, nor can he call it bad or
inferior.
74. In Colortek Meghalaya Pvt. Ltd. (supra), a Division Bench of
this Court, taking note of the Constitutional guarantee accorded to
"commercial speech", has held as under:
―14. On the basis of the law laid down by the
Supreme Court, the guiding principles for us
should be the following:--
(i) An advertisement is commercial speech and
is protected by Article 19(1)(a) of the
Constitution.
(ii) An advertisement must not be false,
misleading, unfair or deceptive.
(iii) Of course, there would be some grey
areas but these need not necessarily be taken
as serious representations of fact but only as
glorifying one's product.
To this extent, in our opinion, the protection of
Article 19(1)(a) of the Constitution is
available. However, if an advertisement
extends beyond the grey areas and becomes a
false, misleading, unfair or deceptive
advertisement, it would certainly not have the
benefit of any protection.
xxxxx
18. On balance, and by way of a conclusion,
we feel that notwithstanding the impact that a
telecast may have, since commercial speech is
protected and an advertisement is commercial
speech, an advertiser must be given enough
room to play around in (the grey areas) in the
advertisement brought out by it. A plaintiff
(such as the Appellant before us) ought not to
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 39 of 58
be hyper-sensitive as brought out in Dabur
India. This is because market forces, the
economic climate, the nature and quality of a
product would ultimately be the deciding
factors for a consumer to make a choice. It is
possible that aggressive or catchy advertising
may cause a partial or temporary damage to
the plaintiff, but ultimately the consumer
would be the final adjudicator to decide what
is best for him or her.
75. Another Division Bench of this Court, in Colgate Palmolive
Company and Anr v. Hindustan Unilever Ltd. (supra), reiterated that
while it is open for a person to exaggerate the claims relating to his
goods and indulge in puffery, it is not open for a person to denigrate
or disparage goods of another. In case of comparative advertisement, a
certain amount of disparagement is implicit. If a person compares its
goods and claims that the same are better than that of its competitors,
it is implicit that the goods of his competitor's are inferior in
comparison. To this limited extent, puffery in the context of
comparative advertisement does involve showing the competitor's
goods in a bad light. As long as the advertisement is limited only to
puffing, there can be no actionable claim against the same, however,
while doing so, one is not allowed to make a statement that the goods
of others are bad, inferior, or undesirable, as that would amount to
defaming or denigrating the goods of others, which is actionable. The
Division Bench further held that if a person wilfully and intentionally
uses a disparaging expression and puts out an advertisement which
can, plausibly, be construed as disparaging the goods and services of
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 40 of 58
the other and the intention of putting out that advertisement is to seek
benefit from making disparaging statements against competitor‟s
goods, such person would not be entitled to a defence that an
innocuous meaning of the advertisement is also available. The Court
further held as under:
―35. The learned counsel for the respondent
has advanced his contentions in respect of the
multiple meaning rule on the fundamental
premise that it is mutually exclusive to the test,
as to the inference drawn by an average
reasonable man reading or viewing the
advertisement. However, this in our view is
erroneous as applying the multiple meaning
rule does not, by implication, exclude the need
to examine as to how the advertisement is
viewed by an average reasonable person. It is
now well settled that in order to examine the
question, whether an advertisement is
misleading or whether the same disparages the
goods/services of another or leads a viewer to
believe something which is not true, it must be
examined as to how the same is perceived by
an average reasonable man. But we do not
think that in order to examine how a
reasonable man views an advertisement, all
perceptions except one must be discarded.
While determining how an advertisement is
viewed by a reasonable person, in some cases,
it may be necessary to examine whether an
average reasonable person could view the
advertisement in a particular manner, even
though another reasonable view is possible.
We do not think, it is necessary that all
reasonable views except one must be
discarded while determining the question as to
how an advertisement is perceived. The
presumption that there must be a single
reasonable man militates against the principle
that two or multiple acceptable views may be
adopted by different persons who are fully
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 41 of 58
qualified to be described as reasonable
persons.‖
76. There could also be disparagement of goods as a class, like in
the case of Gujarat Co-Operative Milk Marketing Federation Ltd. &
Ors. (supra), wherein a Division Bench of the High Court of Bombay,
found as under:
―27. It could thus be seen that for deciding
the question of disparagement, Court will have
to take into consideration intent of the
commercial, manner of the commercial and
storyline of the commercial and the message
sought to be conveyed by the commercial. We
will also be required to consider as to whether
manner of the commercial is ridiculing or
condemning product of the competitor, to
come to the conclusion that it amounts to
disparagement. However, if manner of the
commercial only shows advertiser's product
better or best without derogating the other's
product then the same would not amount to
disparagement.
XXXXXXX
30. It could thus be seen that, even
according to the Appellant, 30% of the
manufactures of the frozen desserts use
hydrogenated fat or hydrogenated vegetable
oil which is ordinarily known as Vanaspati. As
such, even according to the Appellant also,
70% of the manufacturers of the frozen
desserts, do not use Vanaspati or
hydrogenated vegetable oil. It could further be
seen that it is clearly admitted by the Appellant
that Vanaspati has harmful effects. No doubt
that, Appellant has sought to justify that the
advertisement has been aired only to educate
the consumers with regard to disadvantages of
frozen desserts, which contain hydrogenated
fat or hydrogenated vegetable oil ordinarily
known as Vanaspati. What the Appellant
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 42 of 58
desires to convey by the impugned TVCs is
that, all manufacturers of Frozen Desserts,
including the Plaintiff, use Vanaspati i.e.
hydrogenated vegetable oil in manufacturing
of its product. The said message is false to the
knowledge of the Appellant. The Appellant has
again reiterated in subsequent paragraphs
about the fact of Vanaspati i.e. hydrogenated
vegetable oil being harmful to health.
However, we do not want to burden our
judgment by reproducing the repeated
averments.
31. It could thus be seen that, even
according to the own admission of the
Appellant, hydrogenated fat or Vanaspati has
harmful effects on the health. If, with this
knowledge, the Appellant has aired the
impugned advertisement, showing that all the
manufacturers of frozen desserts use
Vanaspati or Vanaspati tel, there can be no
manner of doubt that intent of the
advertisement is to show that Frozen Desserts
are manufactured by using Vanaspati and that
the said products which are manufactured with
the use of Vanaspati are dangerous to the
health. We have no manner of doubt, to hold
that TVCs have an effect of disparaging the
frozen desserts in general and dissuading the
class of consumers from using it. As held in
catena of cases, Appellant can very well make
a false claim to puff up their product. It can
also make statements which are not true to its
knowledge to show how its product is superior.
It can even compare its products with the
competitors. However, the Appellant cannot be
permitted to air the advertisement which
disparages the product of its competitors.‖
77. However, for ascertaining whether goods as a class have been
disparaged, there needs to be some indication for identification of the
class of goods. General statements may not be sufficient to identify to
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 43 of 58
a class of goods. In a recent judgment of this Court in Zydus Wellness
Products Ltd. v. Dabur India Limited, 2022 SCC OnLine Del 4593, it
was held that:
36. Thus, there has to be either express or
implied reference to a competitor or its goods
or a product category. A mere fleeting allusion
to some unidentifiable product or product
category cannot constitute ‗comparative
advertising'. For an advertisement to be
classified as comparative advertisement, there
ought to be some attributes of a product which
are depicted in the commercial such as the
container, coloured packaging, mark, logo
identifying the Plaintiff's product directly or
indirectly. Even if such elements are absent,
for the Plaintiff to claim generic
disparagement, there ought to be some
indicators of identification of the product
category at least.
78. If a class of goods are disparaged by an advertisement, a leader
or person having substantial stake in the generic disparaged goods can
maintain an action against the advertisement (Refer: Dabur India Ltd.
v. Emami Ltd. (supra)- Chyawanprash case; and Dabur India Ltd. v.
Colgate Palmolive India Ltd. (supra) - Lal Dant Manjan).
79. Now, I shall apply the above principles to the facts of the
present Suit.
80. Recently another learned Single Judge of this Court in Reckitt
Benckiser (India) Pvt. Limited & Anr v. Wipro Enterprises (P)
Limited, Neutral Citation Number:2023:DHC:3418 summarized the
principles applicable to comparative advertisement as under:-
―103. The principles that emerge
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 44 of 58
The overall legal position that emerges from
these decisions is, therefore, the following:
(i) Where the advertisement does
not directly or indirectly refer to the
plaintiff's product, the plaintiff could
not claim that its product was being
targeted merely because it enjoyed a
lion's share of the market. Targeting of
the plaintiff's product is the sine qua
non, whether expressly or by necessary
implication. That implication cannot,
however, be premised merely on the
market share of the plaintiff's product.
(ii) At the same time, even if the
rival product was not specifically
targeted, an indirect representation,
which was sufficient to identify the
product, was as good as direct
targeting.
(iii) Within the limits of permissible
assertions, comparative advertising is
protected under Article 19(1)(a) as
commercial speech. In comparative
advertising, a certain amount of
disparagement is implicit.
(iv) Subject to the exception in (v)
infra, an advertisement must not be
false, misleading, unfair or deceptive,
irrespective of whether it is extolling the
advertised product or criticising its
rival. Misrepresentation and untruth in
advertisements is impermissible. An
advertisement has necessarily to be
honest. It was not only, thereby,
required to be accurate and true, but
could also not convey an overall
misleading message, seen from the stand
point of the customer.
(v) Puffery is the only exception, as
puffery, by its very nature, involves
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 45 of 58
exaggeration and embellishment, and an
element of untruth is bound to exist in it.
Untruth in puffery is permissible only
because puffery is inherently not taken
seriously by the average consumer.
Puffery is not, therefore, to be tested on
the anvil of truth. Some element of
hyperbole and untruth is inherent in
puffery.
(vi) Mere puffery is not actionable.
One can claim one's goods to be better
than others. Extolling the virtues of the
plaintiff's product as containing natural
ingredients, absent in other products,
was not disparaging. Extolling of one's
positive features is permissible.
(vii) However, denigration of a
rival's or a competitor's product is
completely impermissible. While it is
permissible, therefore, to state that the
advertised product is superior to the
competitor's, it is not permissible to
attribute this superiority to some failing,
or fault, in the product of the
competitor. An advertisement cannot
claim that a competitor's goods are bad,
undesirable or inferior. The subtle
distinction between claiming one's
goods to be superior to the others', and
the other's goods to be inferior to one's,
has to be borne in mind.
(viii) Serious statements of facts
cannot, however, be untrue. The
truthfulness of such assertions or
statements of fact is to be strictly tested.
(ix) What matters is the impression
that the advertisement or commercial
registers in the viewer's mind. The
hidden subtext, so long as it is apparent
to the average consumer, therefore,
matters. The impact could be conveyed
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 46 of 58
by clever advertising or innuendo
instead of conveying of a direct
message.
(x) The reasonable man, from whose
point of view the advertisement is to be
assessed, is a right thinking member of
the general public, and not a member of
any particular class or section. He
(a) is not naïve,
(b) can read between the lines,
(c) can read in implication into
the advertisement,
(d) may indulge in some amount
of loose thinking,
(e) is not avid for scandal and
(f) does not select a derogatory,
or bad, meaning to be attributed
to an advertisement where
alternative, non-derogatory
meanings are also available.
(xi) While examining whether a
commercial is disparaging, the Court is
required to see
(a) the intent of the commercial,
(b) the manner of the
commercial and
(c) the story line of the
commercial, and the message
that it seeks to convey.
What has to be seen is the overall effect
of the advertisement, i.e. as to whether
the advertisement is promoting the
advertised product or disparaging the
rival product. The advertisement has to
be seen as a whole, not frame by frame.
While promoting his product, an
advertiser might make an unfavourable
comparison, but that may not
necessarily affect the story line or
message or have an unfavourable
comparison as its overall effect.
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 47 of 58
(xii) The Court should neither
undertake an over-elaborate analysis,
nor be too literal in its approach.
(xiii) The advertisement was to be
viewed as a normal viewer would view
it, and not with the specific aim of
catching disparagement. Words used in
the advertisement are meant to be
understood in their natural, general and
usual sense and as per common
understanding.
(xiv) The time spent in showing the
product was irrelevant; what was
relevant was the context in which the
product was shown.
(xv) A plaintiff cannot afford to be
hypersensitive, as the choice of the
article which a consumer would select
would depend on various factors
including market forces, economic
climate and nature and quality of the
product.
(xvi) It is necessary to provide a fair
amount of latitude to the advertiser as
well.‖
(a) PRINT ADVERTISEMENT
81. As far as the Print Advertisement is concerned, it is the case of
the plaintiff that the opening statement "याद रखना, सस्ता आवला, बालो
को महं गा पड़े गा" (Yaad Rakhna, Sasta Aawla, balo ko mehenga
padega) is alarming and threatening the consumers against all cheaper
in price Amla Hair Oils as being inferior and harmful. The plaintiff
claims that this amounts to generic disparagement. The learned senior
counsel for the plaintiff submits that this is not mere puffery but is a
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 48 of 58
false declaratory representation of fact which amounts to
disparagement. He submits that in fact, „sasta amla‟ is a direct
reference to the plaintiff‟s product, which has been regularly
advertised for almost 12 years as being cheaper in comparison to
defendant‟s product. He submits that, the impugned advertisement,
therefore, invokes some memory of plaintiff‟s product and defames it.
The learned senior counsel for the plaintiff submits that the plaintiff
has 42.35% market share by volume in the Amla Hair Oil category,
the advertisement is, therefore, directed against the plaintiff‟s product.
82. On the other hand, the learned senior counsel for the defendant
submits that the word „sasta‟ in the impugned advertisement refers to
hair oils which are cheap in terms of quality and price. The
advertisement claims that as against ordinary and cheaper hair oils, the
defendant‟s Amla hair oil is better. He submits that a similar claim by
the plaintiff has already been considered by the High Court of
Bombay in the orders referred to hereinabove, as also by the IRP of
ASCI and has been rejected.
83. I have considered the submissions made by the learned senior
counsels for the parties.
84. As noted hereinabove, while judging the claim of
disparagement, the test to be applied is of an ordinary average
consumer and the impact the advertisement would have on such a
consumer. It is to be considered whether the advertisement is
defamatory of the plaintiffs‟ goods individually or as a class. In the
advertisement impugned before the High Court of Bombay, the
message of caution was worded as under:
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 49 of 58
"सावधान!!
"सस्ते आवला तेल से मेरे बाल टू टने और झर्ड् ने लगे थे
इससलए हे यर आयल के साथ कोई समझौता नह ,ं मेरे सलए ससर््,
असल आवला, र्ाबर आवला"
85. Considering the same, the High Court of Bombay in the
judgement dated 14.02.2020, observed as under:
―8. First of all, this Court cannot persuade
itself to believe that in substance, the
impression sought to be conveyed to an
ordinary man on the street or buyer of the
goods in question is that all products of ‗Amla
Hair Oil', which are priced lesser than the
Plantiff's ‗Amla Hair Oil', are inferior in
quality or that they lead to hair fall or hair
breakage. That certainly, in my opinion, is not
the impression meant to be conveyed or is
likely to be conveyed to a reasonable man on
the street or an ordinary consumer of the
subject goods. The Defendant, of course, as I
have noted above, may be said to have meant
to use the words ‗cheap oil' or ‗sasta tel' as
suggestive of lesser price and not necessarily
of inferior quality. It is , certainly arguable, as
Mr.Tulzapurkar suggests, that the words here
conveys both meanings; it may, in fact, in that
sense have been used tongue in cheek; but it,
by no means, suggests that what the
advertisement disparages are products of
lesser price as a class. What the
advertisement, taken at its plain face value,
conveys is that there could be products which
are cheap (that is, of lesser price), but the
consumers better beware - these might be
cheap, not just in terms of price, but even in
terms of quality; these might yet be harmful
and leads to conditions such as hair fall or
hair breakage. In comparison, the Plaintiff's
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 50 of 58
products are shown as ‗True Amla', that is to
say, of a purer variety. There is no
disparagement in this of the whole range of
cheaper (in terms of price) variety of amla
hair oil generally, much less of any one
products in particular, or, for that matter, the
Plaintiff‟s amla hair oil. All that this suggests
is that the Defendant, in its advertisement,
calls upon consumers to pay more attention to
quality rather than go merely by price. The
disparagement, in other words, if at all there is
any, is of products, which are ‗cheap', not just
in terms of price, but also of quality. It may
well be that both senses of the word ‗cheap' or
‗sasta' are invoked in the present case to
convey the above. Ambivalence such as this,
reflected in the copy, actually lends literary
merit or artistic value or adds punch to the
advertisement. There is no suggestion here, as
Mr Tulzapurkar suggests, that all products of
lesser price are generally inferior, much less
that the Plaintiff‟s products in particular is
inferior.
10. ...The facts of all these cases are clearly
distinguishable from the facts of the present
case. The shape, size, colour or contours of the
bottle of disparaged product shown in the
impugned advertisement cannot be said to be
evoking, in any real sense, the memory of the
plaintiff's product. Even, for that matter, the
reference to „Cheap Amla Hair Oil‟ cannot
be said to evoke the memory of the Plaintiff‟s
product. As I have notes above, it is difficult
to hold that what are disparaged in the
impugned advertisement are lesser price
products as a class. So also, the Plaintiff has
not shown as this prima facie stage that the
phrases „cheap hair oil‟ or „sasta tel‟ used in
the advertisement were indeed an idea
associated solely with the plaintiff‟s product.
It is difficult to say on the basis of materials
produced before the court, that the reference
to ‗cheap hair oil' or ‗sasta tail' evokes the
memory of the Plaintiff's hair oil‖
(Emphasis supplied)
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 51 of 58
86. Though, the above order is not binding on this Court, in my
view, being between the same parties and relating to almost similar
advertisement against which similar complaint was made by the
plaintiff, it has to be given due deference. I am, in fact, prima facie in
agreement with the above observations of the High Court of Bombay.
There is no apparent reference of the plaintiff in the impugned Print
Advertisement. The reference to the plaintiff, if any, can be drawn
only by a leap of imagination, which in my prima facie opinion is not
warranted. It is merely suggestive of the fact that there could be severe
repercussions in using cheaper Amla Hair Oils-cheaper being in
quality and price. The leap of imagination that the plaintiff wants this
Court to take is too wide. A consumer, while reading the Print
Advertisement, would not be able to relate the term of "sasta amla" to
the plaintiff‟s product, because neither is the bottle in the
advertisement referring to the plaintiff‟s product, nor is it directly or
indirectly implying the plaintiff‟s product. It is also not a generic
disparagement of all cheaper Amla Hair Oil. In my opinion, the
advertisement is to be judged from point of view of an ordinary
consumer and his perception of the advertisement, which in my prima
facie opinion would be to see the advertisement as a puffery, rather
than from a sensitive competitor like the plaintiff. For the claim of the
plaintiff to succeed, the consumer is also to be attributed with an
imagination that the mere use of the word „sasta‟, without there being
any other indication to the plaintiff‟s product can only be the product
of the plaintiff, which in my opinion, is not made out even considering
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 52 of 58
the advertisement campaign of the plaintiff which highlights
plaintiff‟s products being cheaper in price to that of the defendant. Nor
is there a disparagement of the class of products in the impugned Print
Advertisement. In my opinion, the advertisement merely suggests that
buying Amla Hair Oil, which is cheaper in price or quality, might be
harmful to the hair. This can be stated to be an opinion but not
defamatory of all hair oils that are cheaper in price to that of the
plaintiff.
87. The plaintiff then contends that the comparative juxtaposition of
the two bottles that is, one of the defendant and the other unmarked
but with a red cross with a tagline „Asli Amla, Dabur Amla‟ would
convey an impression that only Dabur Amla is real and genuine, and
all cheaper oils are not.
88. The above submission does not impress me. As noted above,
the tagline „Asli Amla, Dabur Amla‟ is a registered trade mark of the
defendant and therefore, the defendant is entitled to use the same. The
defendant cannot be injuncted from using its registered trade mark
without the registration of the mark being challenged. The Print
Advertisement, in fact, itself proclaims that the tagline is the
registered trade mark of the defendant. Even otherwise, the tagline
cannot be read to mean that only the defendant‟s product is real or
genuine while all the others are fake. The advertiser‟s creativity
cannot be curtailed or injuncted by such hypersensitive approach that
the plaintiff wishes this Court to adopt on the impugned
advertisement.
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 53 of 58
89. The plaintiff also challenges the claim of the impugned Print
Advertisement that the hair oil of the defendant imparts two times
extra strength to the hair. The defendant asserts that the claim is based
on a survey. This challenge would therefore, have to be considered on
evidence of the parties. In any case, this claim of the plaintiff has also
been earlier considered by the High Court of Bombay and ASCI. The
same cannot be a ground for grant of an ad interim injunction in
favour of the plaintiff. Similar will have to be the fate of the other
challenge to the Print Advertisement, which I must emphasise, were
not even seriously put in question by the learned senior counsel for the
plaintiff in the course of oral submissions.
(b) WhatsApp ADVERTISEMENT
90. This now brings me to the WhatsApp Advertisement. In this
regard, what is to be considered at the outset is the denial of the
defendant of having any role to play in the said message or
advertisement.
91. At the same time, the plaintiff asserts that the WhatsApp
message was in circulation a day prior to the release of the Print
Advertisement and this would have happened only with the
concurrence of the defendant. It has also been prima facie shown that
Mr.Jeevan Gehlot, Sr. Sales Officer of the defendant and Mr.Akshay
Agarwal, Marketing Manager of the defendant were party to the
circulation of the WhatsApp message/Advertisement.
92. Be that as it may, the defendant has unequivocally submitted
that it had no objection if the circulation of the WhatsApp
Advertisement is injuncted by this Court.
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 54 of 58
93. While I have held that prima facie it appears that the WhatsApp
message has been originated and circulated by the employees of the
defendant, at the same time, I must also take note of the e-mail dated
10.06.2022 from Mr.Mohit Garg, an employee of the defendant, to
inter alia the advertising agency, giving the aim of advertising
campaign as under:
―We need a print creative to instigate the
feeling self-respect and pridewith our loyal
consumers. Below pointers may help you work
on it.
This creative is to highlight the fact there is a
reason why Dabur Amla is the first choice of
consumers since last 80 years. Stronger,
longer thicker hair with Dabur Amla. This is
Barson ka Sach. That is why millions of
households are using it since so many years,
making it World's No 1 Hair Oil.
Only ―Dabur Amla is Asli Amla‖ offers 2X
stronger hair.
Regards,
Mohit‖
94. In response to the above, the advertising agency informed the
defendant vide an email dated 13.06.2022, as under:
―Good evening. Hope all is well. This is
regarding the competitive press ad to counter
Nihar Shanti Amla.
We have taken forward your thoughts and had
worked upon 2 approaches which we as a
team feel works and will have impact.
For the tier 2/3 consumers, we feel that if we
speak their language they get the message
quickly and believe the same.
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 55 of 58
Attached is the presentation, with the layouts
and let us know which one you guys prefer.‖
95. The defendant not being satisfied with the response vide e-mail
dated 13.06.2022, again reiterated its intent in the following words:
―Not aligned to any of these approaches.
While you have tried new options which is
great but where is the option we had asked
for? That option was supposed to create a
higher ground for dabur amla and it didn't
need to have any comparison with shanti amla.
That's the reason had spoke to you the other
day and requested to think afresh rather than
getting into competitive bashing.‖
96. Therefore, at this stage, it would be a highly disputed and a
mixed and vexed question of facts whether the defendant, as a
corporate entity, can be saddled with the liability of the acts of its
employees. It would have to be considered whether the WhatsApp
message circulated by the employee of the defendant was with the
authority and concurrence of the defendant and, if so, the effect
thereof.
97. The question then raised by the learned senior counsel for the
plaintiff is that the WhatsApp Advertisement/message clearly shows
that the impugned Print Advertisement targets only the plaintiff. He
submits that in view of the same, the plea of the defendant that the
impugned Print Advertisement does not target the plaintiff and/or that
the impugned advertisement uses the words „sasta amla‟ in a general
sense and not only for the price, cannot be accepted. He submits that
the two advertisements read together clearly betray the mala fide
intent of the defendant in launch of the impugned advertisements.
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 56 of 58
98. While the above submissions at first blush impressed me and
had even persuaded me to grant the ad interim ex parte injunction,
taking into account the totality of circumstances, cannot be a ground
to injunct even the Print Advertisement. Though the WhatsApp
message/Advertisement shows that the impugned Print Advertisement
is aimed at the plaintiff, however, the ordinary consumer would not
have the benefit of having the WhatsApp Advertisement/message
along with the Print Advertisement before him/her. It would only be
the persons who receive the WhatsApp Advertisement/message along
with the Print Advertisement, who would be able to make the
connection between the two. Even otherwise, the WhatsApp
message/Advertisement merely reflects that the Print Advertisement is
aimed against the plaintiff as it calls upon the shop employees to
display Print Advertisement, therefore, the Print Advertisement has to
be considered independent of the WhatsApp message/ Advertisement
and the two cannot be read together, as has been prayed for by the
plaintiff.
99. In Puro Wellness Pvt. Ltd. (supra), the Division Bench of this
Court disapproved of the learned Single Judge considering different
material as constituting a „campaign‟ and, therefore, as a whole. It was
held that the merits of each of the distinct elements should have been
considered separately and the type of material cannot be conflated
with the other.
100. In view of the above, I find that while the plaintiff has not been
able to make out a prima facie case against the Print Advertisement.
Signature Not Verified
Digitally Signed By:SUNIL
Signing Date:03.06.2023
16:37:55 CS(COMM) 471/2022 Page 57 of 58
At the same time, the plaintiff has been able to make out a prima facie
case as far as the WhatsApp message/Advertisement is concerned.
101. Accordingly, the defendant, either directly or through its
servants, agents, employees or any other persons working under it, is
restrained from circulating the WhatsApp message/Advertisement,
during the pendency of the Suit. The defendant must bring this order
to the notice of its employees.
102. The applications are disposed of in the above terms.
103. It is made clear that any and all observations made hereinabove
are only prima facie in nature and should not be considered as a final
opinion of the Court or as binding at the time of final adjudication of
the Suit.
I.A. No.18777/2022
104. This is an application filed by the plaintiff seeking condonation
of 15 days‟ delay in filing the replication.
105. For the reasons stated in the application, the delay is condoned
and the replication is taken on record.
106. The application is disposed of.
CS(COMM) 471/2022
107. List on 18th August, 2023 before the learned Joint Registrar
(Judicial).
NAVIN CHAWLA, J.
JUNE 2, 2023/Ais/KP Signature Not Verified Digitally Signed By:SUNIL Signing Date:03.06.2023 16:37:55 CS(COMM) 471/2022 Page 58 of 58