In CS(COMM) 471 of 2022 -DEL HC- Delhi High Court refuses to injunct Dabur Hair Oil print advertisement, but restrains Dabur from circulating WhatsApp message or advertisement on Amla Hair Oil during pendency of suit
Justice Navin Chawla [02-06-2023]
Read Order: Marico Limited v Dabur India Limited
New Delhi, June 6, 2023: The Delhi High Court restrained premier company Dabur, manufacturers of diverse range of wellness, healthcare and food products including Dabur Amla Hair Oil, from circulating its WhatsApp advertisement on ‘Dabur Amla Hair Oil’ featuring Bollywood actor Deepika Padukone, during the pendency of the suit.
The Single-Judge Bench of Justice Navin Chawla, while exercising its civil commercial jurisdiction observed: “Accordingly, the defendant, either directly or through its servants, agents, employees or any other persons working under it, is restrained from circulating the WhatsApp message/Advertisement, during the pendency of the Suit…It is made clear that any and all observations made herein above are only prima facie in nature and should not be considered as a final opinion of the Court or as binding at the time of final adjudication of the Suit.”
In the matter at hand, Marico Limited (petitioner) alleged disparagement of the goodwill and reputation of its product ‘Nihar Natural Shanti Badam Amla Hair Oil’ and its registered trade mark ‘Nihar’ and consequently preferred an application, praying for strict action against Dabur (respondent) for making a false statement and for revival of the ad-interim injunction to restrain Dabur from circulating or forwarding its WhatsAp Advertisement or Print Advertisement on Amla hair oil.
The Court observed that “In view of the above, I find that while the plaintiff has not been able to make out a prima facie case against the Print Advertisement. At the same time, the plaintiff has been able to make out a prima facie case as far as the WhatsApp message/Advertisement is concerned.”
It was the case of the petitioner that the Print Advertisement shows a bottle similar to that of the plaintiff’s product ‘Nihar Naturals Shanti Badam Amla Hair Oil’ with a big cross in a stark red colour upon it, thereby asking the consumers to reject the plaintiff’s product. Further, the WhatsApp message which was in circulation on 11-07-2022 depicted a boxing glove knocking down the plaintiff’s bottle with a caption ‘Ab Nihar Shanti amla se jung jeetenge hum’, and urged the shopkeepers to circulate the same by stating ‘WhatsApp par share kare' which shows that the intention of the advertiser was to target the plaintiff and its product. The Print Advertisement begins by alarming and threatening the consumers with statement ‘Yaad Rakhna, Sasta Aawla, balo ko mehenga padega' against all other cheaper in price Amla Hair Oils as being inferior and harmful. It was submitted that this amounted to generic disparagement.
The Bench observed that there was no apparent reference of Marico Limited in the impugned Print Advertisement and stated that “The reference to the plaintiff, if any, can be drawn only by a leap of imagination, which in my prima facie opinion is not warranted. It is merely suggestive of the fact that there could be severe repercussions in using cheaper Amla Hair Oils-cheaper being in quality and price. The leap of imagination that the plaintiff wants this Court to take is too wide.”
It was further observed that “A consumer, while reading the Print Advertisement, would not be able to relate the term of “sasta amla” to the plaintiff‟s product, because neither is the bottle in the advertisement referring to the plaintiff‟s product, nor is it directly or indirectly implying the plaintiff‟s product. It is also not a generic disparagement of all cheaper Amla Hair Oil.”
The Bench stated that the advertisement was to be judged from point of view of an ordinary consumer and his perception of the advertisement, which would be to see the advertisement as a puffery, rather than from a sensitive competitor like Marcio Limited.
The Bench was of the view that for the claim of the plaintiff to succeed, the consumer was also to be attributed with an imagination that the mere use of the word ‘sasta’, without there being any other indication to the plaintiff’s product could only be the product of the plaintiff, which in the Court’s opinion was not made out even considering the advertisement campaign of the plaintiff which highlighted plaintiff’s products being cheaper in price to that of the defendant nor was there a disparagement of the class of products in the impugned Print Advertisement.
“In my opinion, the advertisement merely suggests that buying Amla Hair Oil, which is cheaper in price or quality, might be harmful to the hair. This can be stated to be an opinion but not defamatory of all hair oils that are cheaper in price to that of the plaintiff.” observed the Court
Commenting on the circulation of impugned WhatsApp advertisement, the Bench stated that “Though the WhatsApp message/Advertisement shows that the impugned Print Advertisement is aimed at the plaintiff, however, the ordinary consumer would not have the benefit of having the WhatsApp Advertisement/message along with the Print Advertisement before him/her. It would only be the persons who receive the WhatsApp Advertisement/message along with the Print Advertisement, who would be able to make the connection between the two. Even otherwise, the WhatsApp message/Advertisement merely reflects that the Print Advertisement is aimed against the plaintiff as it calls upon the shop employees to display Print Advertisement, therefore, the Print Advertisement has to be considered independent of the WhatsApp message/ Advertisement and the two cannot be read together, as has been prayed for by the plaintiff.”
In view thereof, while refusing to injunct the print advertisement on the hair oil, the Court restrained Dabur or any other person working under it from circulating the WhatsApp message or Advertisement on Amla hair oil, during the pendency of the Marico’s suit.
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