Emami Ltd vs Dabur India Ltd
2018 Latest Caselaw 7118 Del

      * IN THE HIGH COURT OF DELHI AT NEW DELHI
      %                    Date of decision: 3rd December, 2018

+     FAO(OS) (COMM) 285/2018 & CAV. Pet. No. 1113/2018 and
      CM. Nos. 50290/2018 and 50291/2018
      EMAMI LTD                                        ....Appellant
                         Through: Mr. Rajiv Nayar, Sr. Adv. with
                                   Mr. Abhimanyu Bhandari,
                                   Ms. Roohina Dua, Mr. Anirudh
                                   Bakhru and Mr. Cheitanya Madan,
                                   Advs.
                  versus
       DABUR INDIA LTD                              Respondents
                     Through: Mr. Hemant Singh, Ms. Mamta Rani
                              Jha, Mr. Manish Kumar Mishra and Akansha
                              Singh, Advs.
       CORAM:
       HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE V. KAMESWAR RAO

       V. KAMESWAR RAO, J. (ORAL)

CAV. Pet. 1113/2018

As learned counsel for the caveator appears, caveat stands discharged.

CM. No. 50291/2018 (for exemption) Exemption allowed subject to all just exceptions.

Application stands disposed of.

FAO(OS) (COMM) 285/2018

1. The present appeal has been filed by the appellant challenging

the order dated 27th November, 2018 passed in IA No. 16105-

16106/2018, whereby the learned Single Judge has directed the

appellant to withhold the printing, publishing and broadcasting of the

impugned advertisement till the next date of hearing as according to

the learned Single Judge the impugned advertisement of the appellant

is misleading unfair, deceptive and appears to have been created with a

dishonest intention to disparage the respondent's product.

2. The challenge of the respondent before the learned Single Judge

was that the appellant has started impugned advertisement campaign

(at Annexure A-5, Page 56) of the paper book, on 13th November,

2018 that Chyawanprash is nothing but sugar, and is harmful. It was

the contention of the learned counsel for the respondent that the

advertisement which shows the father eating Chyawanprash, and the

child as well as the mother telling the father that he is eating sugar,

disparages and denigrates Chyawanprash. The last frame showing the

appellant's product removing the spoonful of Chyawanprash further

adds to denigration of Chyawanprash and projects it in bad light.

3. It is the case of the respondent that the television commercial has

been made to disparage the entire category of Chyawanprash by

creating fear in the mind of the consumers that it contains high level of

sugar and is therefore inferior, unhealthy and an incorrect choice and

indeed that the consumer should turn to the product of the appellant

herein. In other words, the appellant herein, in the present

advertisement, has called Chyawanprash as sugar, without

acknowledging its therapeutic and medicinal benefits. The

appellant has further used the sentence / phrase "ab chini wali

immunity bhagaiye", which is a clear indication to the consumers

not to buy Chyawanprash. Learned Single Judge had suggested to

the appellant to withhold the impugned advertisement till the next

date of hearing, i.e., 8th January, 2019. However, the said suggestion

was not acceptable to the appellant herein. Pursuant thereto, the learned

Single Judge has passed the aforesaid order.

4. We have heard the learned counsel for the parties. During the

course of his submissions, Mr. Rajiv Nayar, learned Sr. Counsel

appearing for the appellant submits that the basis for the respondent

to file the suit seeking injunction on the alleged ground that the

appellant's advertisement is misleading unfair, deceptive and is

sought to be issued with a dishonest intention to disparage the

respondent's product is because of the depiction of the bottle in white

and red colour, which according to the respondent herein depicts it's

bottle of Chyawanprash. He submits that the appellant herein is

ready and willing to replace the said bottle in the advertisement with

a bottle of the appellant's own product / Zandu Chyawanprash

wherever it occurs in the advertisement. He states that the very basis

on which the allegations as afore-stated are being made shall not subsist

and the stay needs to be vacated. He states, the appellant shall continue

this depiction in the advertisement till the next date of hearing before

the learned Single Judge on 8th January, 2019 as according to him, it is

this period where there is maximum consumption of Chyawanprash.

5. Mr. Hemant Singh, learned counsel appearing for the respondent,

on this submission of Mr. Nayar, states that the appellant must also

ensure that the printing on the bottle of the appellant", as proposed to be

used in the subject commercial, should also depict the words "Zandu

Chyawanprash". If this being the submission made by Mr. Singh, we

are of the view that even the bottle of red and white depicted in the

impugned advertisement, supposed to be relating to the respondent

herein, does not depict any words on the same.

6. There is no denial of the fact that the colour of green and yellow is

the colour of the bottle of the appellant herein and is different from the

bottle of the respondent herein. We take the submission of Mr. Nayar on

record. The appellant shall carry out necessary changes in the

advertisement and thereafter proceed to advertise the product. This

arrangement shall continue till the next date, i.e., 8th January, 2019, when

the suit is listed before the learned Single Judge. The order dated 27th

November, 2018 is modified to that extent.

The appeal stands disposed of.

CM. No. 50290/2018 (for Stay) Dismissed as infructuous.

V. KAMESWAR RAO, J

CHIEF JUSTICE

DECEMBER 03, 2018/jg