'Misleading Statements Cannot Be Allowed Under Guise Of Free Speech': Calcutta HC Injuncts Chyawanprash Ads Of Baidyanath Ayurved For Disparaging Dabur Trademark

The Calcutta High Court on Tuesday permanently injuncted four advertisements by the makers of Baidyanath Chyawanprash Special for being disparaging to all other brands of Chyawanprash including Dabur Chyawanprash. 

Justice Shekhar B Saraf was adjudicating upon a plea moved by Dabur seeking an injunction against the uploading of five advertisements that had allegedly disparaged the goodwill and reputation of its trademark.

Partially allowing the appeal, the Court stated that the concerned advertisement facilities a false statement that denigrates all other brands of Chyawanprash. The Court observed further, 

"Precedents cited by both parties make it clear that true statements can be made even if it denigrates the rival's product, but false and misleading statements cannot be allowed under the guise of free speech. In light of the same, this video advertisement is disparaging and an action from this Court would lie. In light of the reasons provided above, this video advertisement is permanently injuncted."

The Court further underscored that the concerned advertisements are misleading and accordingly opined, 

"A misleading advertising, as the term implies, is one that deceives, manipulates, or is likely to deceive or manipulate the consumer. These commercials have the potential to influence consumer's purchase preference in the market and it also harms its rivals, hence, they must be used with caution. There should be a balance between the right of commercial speech and the interest of public and competitors. In the present case, the video advertisement is, to a large extent, misleading"

Arguments 

Dabur had sought the taking down of advertisements by Baidyanath by contending that the advertisements are comparative in nature and made untruthful comparisons. It was further argued that although there had been no direct reference to Dabur, however, there had been generic disparagement, giving rise to the instant cause of action.

In the impugned advertisement, Baidyanath had published a comparative chart describing the qualities of its product with other rival products in the market.  It was further claimed that its Chyawanprash has '52 herbs' whereas its rivals have only '42 ingredients'. 

On the other hand, the counsel for Baidyanath argued that the right to commercial speech was a part of freedom of speech and expression guaranteed under Article 19 (1) (a) of the Constitution. Accordingly, it was contended that any curtailment of advertisements would would violate its fundamental right. The Court was also apprised that the impugned advertisements do not refer to Dabur's product at all, but an unnamed fictitious product.

Observations 

The Court referred to a host of judgments and accordingly observed that while deciding the issue of disparagement the Court has to apply the reasonable man test, that is, whether a reasonable man would take the claim being made as being a serious claim or not.

It was further opined that the impugned advertisement campaign has to be looked into with a broader perspective to decide whether a serious comparison is made by the alleged infringer.

"The comparison in the nature of "Better or Best" based on truthful claims is permitted, but comparison in the nature of "Good v. Bad" is not. The impact and impression of the impugned advertisements has to be examined and if it gives out an impression that the rival product has a defect or demerit (which is not true) then such impression would make it disparaging", the Court elucidated further. 

It was further stated that the comparison between rival products is allowed only to the extent of "Puff" and honest trade practice. Any malicious or deliberate depiction of rival product in a bad taste is not permitted, the Court underscored further. 

"Generic disparagement of a rival product without specifically identifying or pin pointing the rival product is equally objectionable, clever advertising can indeed hit a rival product without specifically referring to it. No one can disparage a class or genre of a product within which a complaining plaintiff falls and raise a defence that the plaintiff has not been specifically identified", the Court held further. 

Arguing further that comparative advertising campaign should be 'comparison positive', the Court held that if the advertisements contain valuable information for the consumers and can promote healthy competition in the market, the Courts should be resilient and allow the negative derivatives of such comparison.

Reliance was also placed on the Calcutta High Court judgment in Hindustan Unilever Ltd v. Reckitt Benckiser (India) Ltd  to observe, 

"The above case squarely applies to the present dispute because the comparison made by the defendant/respondent is specifically pointing towards deficiency of the other rival products including the petitioner's product. Moreover, the claim made by the defendant/respondent with regard to number of ingredients of the rival product is false and misleading."

It was emphasised that the comparison in the impugned advertisement fell under the ambit of "negative comparison" since they portrayed Dabur Chyawanprash as inferior or lacking in ten more ingredients that are allegedly essential for it to be complete, and was thus not protected as commercial speech.

"When the defendant highlights that other Chyawanprash contain only 42 ingredients, which is an untrue statement, it cannot claim right to free speech as the same is not allowed to communicate untruthful facts about the other rival products," the Court underscored.

Accordingly, the Court held that the advertisements apart from one that did not mention the number of ingredients were disparaging. The Court however made suggestions for the modification of other injuncted advertisements other than one by removing the reference to "42 ingredients". The order thus stated, 

"a) The bottle that is shown in the 6th second of the advertisement shall only have the printed words "CHYAWANPRASH" and no other word;

b) The reference to the words "42 nahi" in the 29th to 31st second of advertisement shall also be removed."

Senior Advocate Sudipta Sarkar and Advocates Jawahar Lal, Debnath Ghosh, Anuj Garg, Sudhakar Prasad and Pradipta Bose appeared for Dabur. Baidyanath was represented by Advocates Manish Biala, Amrita Panja Moulick, Ashutosh Upadhaya and Devesh Ratan.

Case Title: Dabur India Limited v. Shree Baidyanath Ayurved Bhawan Pvt Ltd

Case Citation: 2022 LiveLaw (Cal) 35.

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