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On merits, in the light of the law that has developed thus far

58. Not so long ago, I had, in Reckitt Benckiser6, occasion, in the light of a dispute substantially similar to the present, to examine the development of the law of disparagement in the context of commercial advertisements. From the judgments of Division Benches of this Court, which constitute binding precedents, in Pepsi Co Inc v. Hindustan Coca-Cola Ltd19, Dabur v. Colortek7, Reckitt Benckiser (India) Pvt Ltd v. Hindustan Unilever Ltd20, Hindustan Unilever Ltd v. Reckitt Benckiser India Pvt Ltd21, Hindustan Unilever Ltd v. Reckitt Benckiser India Pvt Ltd22 and Colgate Palmolive Co.9, I had attempted to cull out the following definitive principles as emerging:

(xvi) It is necessary to provide a fair amount of latitude to the advertiser as well.

59. The said principles have subsequently been followed by another Coordinate Bench of this Court in Marico10.

60. A brief glance at the above Division Bench decisions, and the reasons for this Court to have held as it did, would not be out of place.

61. Pepsi Co Inc v. Hindustan Coca-Cola Ltd19 61.1 The rival products, here, were Pepsi and Thums Up, both cola drinks. Two commercials were under challenge. The first commercial described Pepsi as a sweet drink for small children, with Thums Up being intended for grown-up boys. Two bottles are shown to a child. Both are covered. The lead actor asks the child to identify his favourite drink. Though the child's voice was muted, he lip-synchs "Pepsi". The boy is, thereafter, made to sample the contents of both the bottles. He points to one, and says that children would like that drink, as it is sweet, and children like sweet things. His choice, he says, would be other drink, which tastes strong and would be preferred by grown-ups. The lids are lifted from both the bottles, whereupon the bottle containing the "sweet" drink is labelled "PAPPI", but bears the distinctive Pepsi logo. The Court found, therefore, that the bottle was intended to represent Pepsi. The boy, on seeing this, places his hand on his head, indicating his embarrassment at having initially voiced his preference for Pepsi. The lead actor comments, "Wrong choice, baby". The second commercial was on similar lines, and characterised Pepsi is a sweet drink for kids, with Thums Up being for grown-ups, or for kids who wanted to grow up.

61.2 The Division Bench of this Court found the comment "wrong choice, baby", in conjunction with the statement that Pepsi was sweet, and would be liked by children, to be derogatory. The impression conveyed was that, if children chose Pepsi, it would be a wrong choice. Pepsi, suggested the commercial, was a sweet thing, not meant for grown-ups or growing children. Interestingly, the Division Bench held that, though characterising Pepsi as a drink meant for children per se might not have been disparaging, the embarrassment displayed by the child on being told that the drink of his choice was not one meant for grown-ups and strong children was disparaging, as it depicted Pepsi as a product held in low estimation by the child and of little worth. The gesture of the boy placing his hand on his head to indicate embarrassment was also found to be denigrating, especially when seen in the backdrop of the lead actor's comment, "wrong choice, baby". This Court found that the impugned advertisement poked fun at Pepsi, which was impermissible. Comparison, so long as it did not undervalue the rival product, was allowable, but it became objectionable the moment it transgressed into the realm of ridiculing, poking fun at, or denigrating the rival product.