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Dabur India Ltd. vs Emami Limited on 3 July, 2019 cites

Havells India Ltd & Anr vs Amritanshu Khaitan & Ors on 17 March, 2015

15. Before evaluating the rival contentions of the parties, it would be apt to reflect on the law relating to comparative advertising, which has been CS (COMM) 1074/2018 Page 18 of 41 explicated in several judgments of this Court. While doing so, it would suffice if reference is made to just a few. This Court in Havells India Ltd. v. Amritanshu Khaitan, (2015) SCC Online Delhi 8115, has held as under:
Delhi High Court Cites 24 - Cited by 12 - Manmohan - Full Document

Hindustan Unilever Limited vs Gujarat Co-Operative Milk Marketing ... on 16 June, 2017

34. Amongst the judgments cited by the parties, the learned counsel for the Plaintiff has urged that the decision in the case of Hindustan Unilever Ltd. vs. Gujarat Co operative Milk Marketing Federation Ltd. & Ors (supra) is squarely applicable to the present case wherein the Court has held that generic disparagement of a rival product without specifically identifying or pin pointing rival product is equally objectionable. Even if there is no direct reference to product of Plaintiff and only a reference is made to entire class of products in its generic sense, even in those circumstances disparagement is possible. However, during the course of arguments, the counsel for the Defendant pointed out that the said judgment has been appealed and the Division Bench of High Court of Bombay has held that a blanket injunction could not have been granted by the learned single judge and that the TVC CS (COMM) 1074/2018 Page 34 of 41 cannot be said to be of objectionable nature. Nonetheless, the Court has to take an independent view in each case having regard to the Commercial in question. The Courts have also said that the Plaintiff ought not to be hypersensitive. Ultimately, the Consumer is the one who has to decide which is best suited for him or her. After having carefully analyzed the advertisement and the TVC, the Court does not find that the Defendant is targeting the Plaintiff or the generic product 'Chyawanprash'. There is also nothing to suggest that the modified advertisement disparages or denigrates the Plaintiff's product or Chyawanprash either overtly or covertly. The advertisement does not send a negative message, as is being perceived by the Plaintiff. The Defendant‟s limited comparative analysis cannot be comprehended to be depicting the rival product negatively. As discussed above, there is nothing factually incorrect in the advertisement. The Defendant is thus entitled to say that the advertisements in question and the story line portray truthful claims. The Defendant is also entitled to invite the consumers, who are avoiding sugar, to opt for its product which has no sugar component at all. The story line of the TVC shows a man in his mid 30's who is trying to avoid sugar. The female actor is shown rejecting all products which have sugar. When the person at the check out counter, apprises her of the fact that traditional Chyawanprash has more than 50% sugar, she rejects that as well. There is no depiction of the product of the Plaintiff and the Defendant is only stating a fact and comparing its sugar free variant with traditional/regular Chyawanprash which comparison as discussed above in detail, is permissible in law. There is no statement to the effect that Chyawanprash is bad for health and should not be consumed. The sugar free variants are normally targeted for consumers who are conscious CS (COMM) 1074/2018 Page 35 of 41 of sugar consumption in the food and day-to-day life. Avoiding sugar may not be necessarily on account of a medical ailment. Consumers often adopt sugar free variants by choice. Plaintiff's contention that sugar is not harmful and therefore the Defendant cannot denigrate Chyawanprash because of high content of sugar is misconceived. There are several studies in public domain conducted by health organizations that suggest the harmful effects of sugar. The World Health Organization in its report dated 7th August 2018 warns about the ill effects of sugar. At the same time there is also sufficient material available that highlights the negative effect of sugar free alternatives. The authenticity and source of such studies would need deeper scrutiny as the topic is highly controversial and debatable. The Court need not deliberate on this issue, as both the parties manufacture and market both range of products. The question before the Court concerns whether the impugned advertisements are disparaging or not. At this stage, the Court is to examine if the "look and feel" of the advertisements conveys a message that paints Plaintiff‟s sugar based health supplement - Chyawanprash in bad light. This is the pivotal aspect in the present case. To arrive at a just conclusion, the Court has to examine and synthesize the advertising material and adjudge if the same presents a message that influences the mind against the competitors in a negative way. The theme of the advertisements is to focus on the benefits of healthy sugar free alternatives, not to target the Petitioner‟s product in particular. There is no direct reference to the Plaintiff‟s product per se. The key differentiator of the product is indeed "sugar" and that is the striking feature of the Defendant‟s product. Defendant has also assured the Court that the colour in the TVC does not create any doubt in the mind of the viewers that the comparative product is CS (COMM) 1074/2018 Page 36 of 41 of the Plaintiff. The comparison of sugar free product would necessarily be with a sugar based one, as the absence of sugar is the unique selling attribute. In order to send a message that is effective and long lasting, impugned advertisements convey a message comparatively, highlighting the benefits of a sugar free product. Petitioner interprets the warnings in the advertisements as disparaging the class of sugar based products and that it is vindictively targeted. Court cannot ignore Defendant‟s right to free speech, which includes right to ensure widespread awareness of the benefits of its products. The parties should not be hyper sensitive about the messages. If there is no clear case of disparagement, the Court would not like to interfere.
Bombay High Court Cites 33 - Cited by 9 - S J Kathawalla - Full Document

Pepsi Co., Inc. And Ors. vs Hindustan Coca Cola Ltd. And Anr. on 1 September, 2003

15. There is one other decision that we think would give some guidance and that is Pepsi Co. Inc. & Ors. v. Hindustan Coca Cola Ltd. & Another, 2003 (27) PTC 305 (Del.) (DB). In this decision, a Division Bench of this Court held that while boasting about one's product is permissible, disparaging a rival product is not. The fourth guiding principle for us, therefore, is: (iv) While glorifying its product, an advertiser may not denigrate or disparage a rival product. Similarly, in Halsbury‟s Laws of England (Fourth Edition Reissue, Volume 28) it is stated in paragraph 278 that "[It] is actionable when the words go beyond a mere puff and constitute untrue statements of fact about a rival's product."
Delhi High Court Cites 29 - Cited by 41 - O P Dwivedi - Full Document

Colgate Palmolive Company And Anr. vs Hindustan Unilever Ltd. on 10 December, 2013

"48. Nonetheless what is important is that such commercial speech should not be false, misleading, unfair, deceptive and which proposes illegal transactions. Explaining the aforesaid concept, the Supreme Court in Colgate Palmolive Company & Anr. (Supra) observed that commendatory expressions may not be serious representations of fact and some latitude is given in the field of advertising for gaining customers. The difficulty in identifying the borderline of permissible assertion in such advertisements which more often than not may not be discernible, was also admitted.
Delhi High Court Cites 16 - Cited by 20 - V Bakhru - Full Document

Horlicks Ltd. And Anr. vs Heinz India (Pvt.) Limited on 23 October, 2009

Reckitt & Colman of India Ltd. v. M.P. Ramchandran & Anr. 1998 SCC Online Cal 422  Marico Limited v. Adani Wilmar Ltd. 2013 SCC Online Del 1513  Dabur India Ltd. v. M/s Colortek Meghalaya Pvt. Ltd. 2010 SCC Online Del 391  Havells India Ltd & Anr. v. Amritanshu Khaitan 2015 SCC Online Del 8115  Colgate Palmolive Company & Anr. v. Hindustan Unilever Ltd. 2013 SCC Online Del 4986  Horlicks Ltd 85 Anr v. Heinz India Private Limited 2018 SCC Online Del 12975
Delhi High Court Cites 65 - Cited by 19 - S K Kaul - Full Document
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