Advertiser Must Have Freedom To Make Ads With Generic Comparison, Can't Be Objected To Unless Representation Is Absolutely Misleading: Delhi HC

The Delhi High Court has ruled that an advertiser ought to have the freedom to make advertisements with generic comparison highlighting features of its own product and that an objection to it cannot be raised unless representation being made is absolutely false or misleading.

Justice Prathiba M Singh said that mere allusions, in the absence of a decipherable comparison, would not be sufficient to make out a case of generic disparagement.

"In the opinion of the Court, cases where there is a direct comparison and denigration of the competitor's product would fall in a completely different category as against those cases where there are allusions or indirect references. Allegations of disparagement in cases where comparison is alleged with an unrelated category as a whole is also objectionable. However, in the case of generic comparison with a product of related / same category without any direct reference to any competitor, the freedom for advertisers would be greater than those cases falling in other categories," the court observed.

The court observed that it cannot be said that every generic comparison would be referencing to the market leader which would be "curtailing freedom of advertising to a considerable extent."

"This is because in order to portray a particular product as being superior or better than existing products, a generic comparison highlighting the strength of its own product without launching a negative campaign against its competitors ought to be permissible failing which the strength of the advertisement could itself be considerably diluted. The purpose of advertising any product is for marketing the attributes of that product. Such attributes could be unilateral or relative in a generic manner," the court said.

The court made the observations while refusing to pass an order of interim injunction against Dabur India Limited in a suit filed by Zydus Wellness Products Limited seeking to restraint two advertisements released by the former for promotion of its product "Dabur Glucoplus-C Orange."

It was the case of Zydus Wellness that one of its most popular variants of "Glucon-D" range of products is "Glucon-D Tangy Orange" which has been marketed and sold by its predecessor for decades.

The grievance of the plaintiff was that the impugned TV commercials aired by Dabur India denigrated and disparaged all orange glucose powder drinks and especially its product "Glucon-D Tangy Orange". As per the plaintiff, the impugned TVC gave an impression that all the orange glucose powder drinks were entirely inefficacious in providing energy and that only Dabur's product was capable of providing energy.

Refusing interim relief to Zydus Limited, Justice Singh observed that commercials are viewed for short fleeting periods and the impact has to be seen as a whole in the short time period in which it is viewed.

"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'," the court observed.

It was also observed that it is usual for advertisers and companies marketing and selling products to portray their products as being superior and that in the process of depicting superiority, a generic comparison ought to be permitted and creativity cannot be stifled.

"A television commercial is not to be analysed in a hyper critical manner. A commercial would have to be viewed as a whole from the view of an ordinary consumer or viewer. The message being portrayed in the commercial would have to be seen and if the message is not derogatory, no objection can be raised," the court said.

The court also observed that the impugned TVC merely highlights the qualities of Dabur's product and does not disparage any orange glucose powder drink, adding that disparagement cannot be a far-fetched inference.

"It would not be proper for the Court to flip the coin to conclude - 'mine is better' as 'yours is bad'. The comparison being made in the impugned TVC might be unfavourable to the Plaintiff, but it cannot be held to be disparaging. The intent and the overall effect of the advertisement in question seems to be to promote the Defendant's product and not to denigrate the Plaintiff's or any other manufacturer's product," the court said.

The court said that impugned advertisement is truthful and that there is no falsity involved in the same. Justice Singh also said that there is no serious misrepresentation of fact on Dabur's part in the impugned TVC.

"In the absence of any disparaging uttering, still or image in the impugned TVC, this Court is unable to arrive at a conclusion merely on the basis of the market share of the Plaintiff that the Plaintiff's product is being disparaged or there is any generic disparagement. The impugned TVC when viewed from the perspective of an ordinary viewer does not give the impression of denigration or disparagement but one where the Defendant's product is being self-promoted," the court observed.

Title: ZYDUS WELLNESS PRODUCTS LTD. v. DABUR INDIA LIMITED

Citation: 2022 LiveLaw (Del) 1213

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