Disparaging Rivals: Why Bombay HC Restrained Amul From Broadcasting Two TV Ads [Read Judgment]

The Bombay High Court has restrained Gujarat Co-operative Milk Marketing Federation Ltd (GCMMF), which markets ice cream under brand name Amul, from broadcasting two television advertisements as they were disparaging towards plaintiff’s product, Kwality Walls.

According to plaintiffs Hindustan Unilever Ltd (HUL), the said advertisement disparages Kwality Walls, a rival to Amul. It is a negative campaign asking consumers not to have frozen desserts, instead have Amul.

In the 87-page judgment, Justice Kathawalla noted that in years 2012-2013, Amul started a campaign by distribution of pamphlets setting out the difference between frozen dessert and ice cream. These pamphlets state: “Usse real milk wala Amul ice cream khilayein, Vanaspati tel wala nahi"

Senior counsel Virag Tulzapurkar appeared for the plaintiffs while senior counsel Ravi Kadam appeared for the defendants.

Although the defendants (Amul) claimed that they do not in any manner, defame, denigrate or slander either frozen desserts or the plaintiff's products, they laid emphasis on the fact that the manufacturers of frozen desserts continued to describe their product as ice cream in violation of S. 53 of the Food Safety and Standards Act (FSSA) 2006, despite the introduction of Regulation 2.1.7 in 2011 by the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011, separately classifying ice creams and frozen desserts under the larger head: "Dairy-based deserts/ confections".

This contention was deemed as incorrect.

Justice Kathawalla noted that the distinction between frozen dessert and ice cream existed even prior to 2011-12.

 It was first introduced in June, 2005, by an amendment to the regulations framed under the Prevention of Food Adulteration Act, 1954.

Law laid down in these following cases was examined by the court:

(i)  Godrej Sara Lee Ltd vs Reckitt Benkiser (I) Ltd

(ii)  Dabur India Ltd vs Colgate Palmolive

(iii) Annamalayar Agencies vs VVS & Sons Pvt Ltd. & Ors

(iv) Godrej Consumer Products Limited vs Initiative Media Advertising

(v)  Eureka Forbes Ltd vs Pentair Water India

The court specified that it is necessary to examine as to when disparagement of a product can be said to have taken place and the entitlement of a manufacturer of a product to sue for disparagement of its product when an entire class of products is disparaged.

Upon examining the law laid down in the aforementioned cases, Justice Kathawalla observed:“Even if there is no direct reference to the product of the plaintiff and only a reference is made to the entire class of products in its generic sense, even in those circumstances, disparagement is possible.”

Finally allowing the notice of motion filed by HUL, the court said:“I once again clarify that it is not only because of the words 'Vanaspati' and 'Vanaspati tel' being used in the impugned TVCs, that this Court has come to the conclusion that Defendant No. 1 is guilty of disparaging the entire category of Frozen desserts which includes the products manufactured by the Plaintiff under the said category, but the Court has reached the said conclusion after considering the content, intent, manner and storyline of the impugned TVCs, which seen as a whole convey a false, untruthful, malicious and negative message that frozen desserts contain vanaspati (which is perceived as unhealthy) are not pure, are inferior to ice creams, not meant to be given to children, is not the right choice and should not be purchased.”