Calcutta High Court
Marico Limited vs Dabur India Limited on 20 May, 2025
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION 2025:CHC-OS:79
ORIGINAL SIDE
[COMMERCIAL DIVISION]
(Intellectual Property Rights Division)
BEFORE:
The Hon'ble Justice Ravi Krishan Kapur
IP-COM/64/2024
[Old No. CS/264/2021]
MARICO LIMITED
Vs
DABUR INDIA LIMITED
For the plaintiff : Mr. S.N. Mookherjee Serior Advocate
Mr. Ratnanko Banerji, Senior Advocate
Mr. Arunabha Deb, Advocate
Mr. Soumya Roy Chowdhury, Advocate.
Ms. Ashika Daga, Advocate
Mr. Raunak Das Sharma, Advocate
Ms. Sampurna Mukherjee, Advocate
For the defendant : Mr. Biswarup Debnath, Advocate
Mr. Sudhakar Prasad, Advocate
Judgment on : 20.05.2025
Ravi Krishan Kapur, J.:
1. This is a suit for disparagement and infringement.
2. The plaintiff is a reputed manufacturer and distributor of Fast-Moving
Consumer Goods (FMCG). The suit relates to a hair product manufactured
by the plaintiff, namely "Nihar Naturals Shanti Badam Amla Hair Oil". The
defendant is also a well-known manufacturer of FMCG products. The
defendant also manufactures hair oil under the mark of "Dabur". The
defendant manufactures two variants of Amla Hair Oil namely "Dabur Amla
Hair Oil" and "New Dabur Amla Hair Oil". Both parties are competitors and
trade rivals in the FMCG sector.
3. The plaintiff states that the mark NIHAR was conceived and adopted in or
about the year 1993 by the predecessor-in-title of the plaintiff. The said
2 2025:CHC-OS:79
mark was acquired by the plaintiff on February 17, 2006 from Hindustan
Unilever Limited and is claimed by the plaintiff to have been used since
then extensively, continuously and for its NIHAR range of products. The
plaintiff states that it is also the registered proprietor of the word mark
NIHAR.
4. The plaintiff states that it has also designed distinctive labels for its Nihar
Naturals Shanti Badam Amla products from time-to-time which are
printed on the distinctive Nihar Amla Bottles and that the current label
comprises the mark NIHAR SHANTI, the image of a popular actress and
brand ambassador against a background in shades of green and images of
badam and amla, all arranged in a distinctive layout, style and manner.
The plaintiff further states that the same is an original artistic work and
has been granted registration under the Copyright Act, 1957.
5. The plaintiff states that the word "SHANTI" forming a part of the Nihar
Registered Marks is also a distinctive element of the Nihar Registered
Marks and has also been applied for on January 29, 2001 and has been
separately registered by the plaintiff and is claimed to being used since
December 1, 2000 extensively, continuously, openly and uninterruptedly.
6. The plaintiff claims that the aforesaid registered trademarks due to their
extensive, uninterrupted, open and continuous use have become
exclusively associated with the plaintiff.
7. The plaintiff manufactures, sells and distributes "Nihar Naturals Shanti
Badam Amla Hair Oil" products in distinctive Nihar Amla Bottles bearing
the Nihar registered marks through a huge network of distributors and
dealers in various states across India. The plaintiff's "Nihar Naturals
3 2025:CHC-OS:79
Shanti Badam Amla Hair Oil" products sold in the distinctive Nihar Amla
Bottles bearing the Nihar registered marks as aforesaid have been
extensively sold and advertised and have become extremely successful and
popular across categories of consumers both in the urban and the rural
markets all over India.
8. On December 24, 2021, the plaintiff was shocked to come across a print
advertisement (in Hindi) issued in the physical and online versions of
several newspapers by the defendant. The impugned advertisement
contains a depiction of the plaintiff's "Nihar Naturals Shanti Badam Amla
Hair Oil" bearing the Nihar Registered Marks, the original artistic work
comprised in the NIHAR Label and the Distinctive Nihar Amla Bottle next
to the defendant's Dabur Amla Hair Oil product and Dabur Red
toothpaste. The said advertisement, inter alia, contained the following
caption "DABUR AMLA DE SHANTI KE MUKABLE (up to) 50%* ZYADA
MAZBOOT BAAL" (in Hindi language) after which, a disclaimer appears to
the effect that "...SWATANTRA LAB MEIN KIYE GAYE IN VITRO ADHYAN
KE AADHAR PAR MAZBOOT BAALON KE SANDARV MEIN, JO NAHI
TOOTTE. UTPAD NIHAR SHANTI AMLA KE SHABD, DEVICE/LABEL MEIN
TRADEMARK KE ADHIKAR 'MARICO LIMITED' KE PAAS HAIN. PACK
SHOTS UDAHARAN KE LIYE DIKHAYE GAYE HAIN. VASTVIK PACK KA
AKAR ALAG HO SAKTA HAIN" (in Hindi language). From the disclaimer it
is evident that, the defendant is fully aware that the plaintiff is the owner
of registered trademark and the label mark "Nihar".
9. By an interim order dated July 19, 2022, the Court had granted an order
of restraint as follows:
4 2025:CHC-OS:79
"a) Injunction restraining the Respondent, its management, members,
affiliates, directors, servants, officers, employees, representatives,
agents and all other persons claiming through or under it or acting in
concert with them or on their behalf or acting on their instructions from
in any manner from printing or disseminating or telecasting or
broadcasting or publishing or otherwise howsoever communicating to
the public or from making available the Impugned Advertisement or any
part thereof or any other advertisement of a similar nature in any
language or in any manner causing the Impugned Advertisement or any
part thereof or any other advertisement of a similar nature to be
disseminated or telecast or broadcast or published or communicated or
made available to the public or published in any manner or on any
mode/media;"
10. Admittedly, despite service of the Writ of Summons on the defendant on
January 31, 2022, no Written Statement has been filed by the defendant
and the defendant has forfeited its right to file the Written Statement.
11. In light of the aforesaid, the plaintiff prays that the present suit may be
decreed by invoking the provisions of Order VIII Rule 10 of the Code of
Civil Procedure, 1908 (as amended). In support of such contention, the
plaintiff relies on Nirog Pharma Pvt. Ltd. v Umesh Gupta & Anr. (2016
SCC OnLine Del 5961), where it has been held as follows:
"The present suit is also a commercial suit within the definition of the
Commercial Courts, Commercial Division and Commercial Appellate
Division of High Courts Act, 2015 and it was the clear intention of the
legislature that such cases should be decided expeditiously and should
not be allowed to linger on. Accordingly, if the defendant fails to pursue
his case or does so in a lackadaisical manner by not filing his written
statement, the courts should invoke the provisions of Order VIII Rule 10
to decree such cases."
5 2025:CHC-OS:79
Similar views have also been expressed in the following decisions in
support of the above proposition: (a) Kaira District Cooperative Milk
Producers Union Ltd. and Another v Maa Tara Trading Co. and Others
(2022 SCC OnLine Cal 2516), (b) Devans Modern Breweries Ltd. v Mount
Everest Breweries Ltd. and Another (2022 SCC OnLine Cal 3514), (c) Shyam
Sel and Power Limited v Atibir Industries Company Limited (2023 SCC
OnLine Cal 3781) and (d) SRMB Srijan Private Limited v Uma Shankar
Jaiswal (2024 SCC OnLine Cal 6157).
12. In such circumstances, and in view of the above, this Court deems this a
fit case for invoking the provisions of Order VIII Rule 10 of the Code of
Civil Procedure, 1908 (as amended).
13. The moot question which arises for consideration is whether the impugned
advertisement disparage the product of the petitioner. A balance has to be
struck by an advertiser merely trying to promote its product but not being
permitted to brand a competitor's product as bad. In other words an
advertiser cannot while saying that his goods are better than his
competitors', say that his competitors' goods are bad. If he says so, he
really slanders the goods of his competitors. In other words, he defames
his competitors and their goods, which is not permissible.
14. Normally, advertisements by their very nature are taken with a finch
exaggeration. An amount of hyperbole is to be expected in the description
of goods, property and services in advertisements.
15. Comparative advertising is a modern day reality. It has become a strategy
now commonly deployed in the advertising and marketing world. Such
6 2025:CHC-OS:79
advertisements constitute commercial speech and are protected under
Article 19(1)(a) of the Constitution of India [Horlicks Vs. Heinz 2019(77)
PTC 45 at Paras 28-31]. Chapter IV of the Advertising Standards Council
of India Code also permits comparative advertisements which includes
naming competitors in advertisements. Such advertisements are
recognized to be in the interests of competition and public enlightenment.
Ordinarily, a certain amount of disparagement is implicit in such
advertisements as long as the advertisement is only limited to puffing.
However, comparative advertising cannot be permitted to be a means to
name and shame a rival's products. In the decision of Reckitt Benckiser
India Private Limited Vs. Hindustan Unilever Limited (2021) 88 PTC 584, it
has been held that: "In comparative advertising, the comparing of one's
goods with that of the other and establishing the superiority of one's goods
over the other is permissible. However, one cannot make a statement that
a good is bad, inferior or undesirable as that would lead to denigrating or
defaming the goods of the other." Similar views have also been expressed
in the following decisions Glaxosmithkline Consumer Healthcare Ltd. v.
Heinz India (P) Ltd., 2010 SCC OnLine Del 3932 at Para 25 and Colgate
Palmolive Company v. Hindustan Unilever Ltd., 2014 (57) PTC 47 [Del] at
Para 27.
16. The impugned advertisements are more than puffery. There is a clear
reference to the product of the plaintiff in each of the advertisements. The
impugned advertisements give an impression that the plaintiff product is
inferior and bad in comparison to the defendant's product. The overall
message which the defendant has tried to convey through the impugned
7 2025:CHC-OS:79
advertisements is that the plaintiff's product does not serve the purpose
which it is intended to serve. The pictorial representation in the impugned
advertisements suggests that the plaintiff's product Nihar Naturals Shanti
Amla Hair Oil is ineffective, unattractive and useless. In such
circumstances, the impugned advertisements disparages and rubbishes
the product of the petitioner.
17. In the absence of the Written Statement, there is no question of
adjudicating the merits of any defence to the case of the plaintiff.
18. Accordingly, the present suit be decreed in favour of the plaintiff against
the defendant in terms of prayer (a) of the plaint which for convenience is
set out hereunder:
(a) A Decree of perpetual injunction restraining the defendant, its servants,
officers, employees, representatives, agents and all other persons
claiming through or under it or acting in concert with them or on their
behalf or acting on their instructions in any manner from printing or
disseminating or telecasting or broadcasting or publishing or otherwise
howsoever communicating to the public or from making available the
impugned advertisement or any part thereof or any other
advertisement of a similar nature in any language or in any manner
causing the impugned advertisement or any part thereof or any other
advertisement of a similar nature to be printed or disseminated or
telecast or broadcast or published or communicated or made available
to the public or published in any manner or on any mode/media;
15. It is clarified that the decree is only limited to the impugned
advertisement. It is also clarified that the order of restrain is not
restricted to any particular portion of the impugned advertisement but to
the impugned advertisement as a whole. The word similar is obviously to
8 2025:CHC-OS:79
be read in the facts and circumstances of the case and in the context of
the impugned advertisement.
16. The defendant on instructions submits that it also does not have any
objection if decree is passed in favour of the plaintiff on the aforesaid
terms.
17. IP-COM 64/2024 being CS-COM/336/2024 and Old No. CS/264/2021
is thus disposed of. Decree be drawn accordingly.
(Ravi Krishan Kapur, J.)
