Delhi High Court
Dabur India Limited vs Marico Limited on 28 December, 2020
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:29.12.2020
15:53:29
$~9 (OS)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 28th December, 2020
+ CS (COMM) 583/2020
DABUR INDIA LIMITED ..... Plaintiff
Through: Mr. Arvind Nigam, Sr. Advocate with
Mr. Jawahar Lal, Mr. Siddharth Bawa
& Mr. Anuj Garg, Advocates. (M-
9958998396)
versus
MARICO LIMITED ..... Defendant
Through: Mr. Sudhir Chandra Agarwal & Mr.
Sandeep Sethi, Sr. Advocates with
Ms. Anuradha Salhotra, Mr. Sumit
Wadhwa, Ms. Achal Shekhar & Mr.
Ryan Wilson, Advocates.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J.(Oral)
1.
This hearing has been done by video conferencing.
I.A. 12779/2020 (for exemption)
2. Allowed, subject to all just exceptions. Application is disposed of.
I.A. 12780/2020 (for court fee)
3. Let court fee/stamp be deposited on or before 31st January, 2021.
Registry to put up a report on the next date confirming the deposit of the
court fee. Application is disposed of.
CS (COMM) 583/2020
4. Let the plaint be registered as a suit.
5. Issue notice and summons to the Defendant. Ms. Salhotra, ld, counsel
for the Defendant accepts notice and summons on behalf of the Defendant.
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:29.12.2020
15:53:29
6. Let written statement to the plaint be positively filed within 30 days
Along with the written statement, the Defendant shall also file an affidavit of
admission/denial of the documents of the Plaintiff, without which the written
statement shall not be taken on record.
7. Liberty is given to the Plaintiff to file a replication within 15 days of
the receipt of the written statement. Along with the replication, if any, filed
by the Plaintiff, an affidavit of admission/denial of documents of the
Defendant, be filed by the Plaintiff, without which the replication shall not
be taken on record. If any of the parties wish to seek inspection of any
documents, the same shall be sought and given within the timelines.
8. List before the roster bench on 15th February, 2021.
I.A. 12778/2020 (u/O XXXIX Rules 1 & 2 CPC)
9. Issue notice. Ms. Salhotra, ld. counsel accepts notice behalf of the
Defendant.
10. The Plaintiff has filed the present suit seeking injunction/damages for
disparagement, denigration, etc. The case of the Plaintiff is that they
manufacture 'DABUR Chyawanprash' which is an ayurvedic proprietary
medicine which helps to boost immunity. It is the case of the Plaintiff that
the Plaintiff is the market leader in the manufacturing of chyawanprash with
a market share of more than 60%. The ingredients in chyawanprash are as
per the prescribed ayurvedic text Charaka Samhita which has about 48
ingredients. The details of the 'DABUR Chyawanprash' product have been
set out in the plaint. The grievance in the present application is that the
Defendant - Marico Limited has launched a product called 'Saffola
AROGYAM chyawan amrut' in the advertisement of which, it seeks to
denigrate and disparage the chyawanprash product category as a whole.
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:29.12.2020
15:53:29
11. Mr. Nigam, ld. Senior Counsel appearing for the Plaintiff, submits
that considering the fact that the Plaintiff is the market leader, the
denigration of any product category would constitute generic disparagement.
He submits that the Plaintiff's product strictly adheres to the prescribed
ayurvedic formulation and the Defendant, in the advertisement has described
the Plaintiff's product as saadharan or ordinary. In addition, the Defendant
has used a bottle which can be immediately related to the Plaintiff's
'DABUR Chyawanprash' by the consumer. The complaint of the Plaintiff is
that the chyawanprash product category is described as saadharan and
ordinary and is juxtaposed with the Defendant's asaadharan or special
Chyawan Amrut. The bottle of chyawanprash can be immediately connected
to the Plaintiff's product as the Plaintiff has a range of chyawanprash
products. One is chyawanprash with a red bottle, one is chyawanprakash
sugar free and another one is chyawanprash chocolate. According to Mr.
Nigam, the "DABUR chyawanprakash" sugar free has a white background
with a red cap, chocolate chyawanprash has chocolate coloured cap and
chocolate coloured bottle and "DABUR chyawanprash" has three members
of a family being shown together being protected by the product. It is thus
urged that the intention of the Defendant, who is a new entrant in the market
for this product category, is to ride on the reputation of the Plaintiff's
product and obviously to gain market share by portraying itself to be a better
product, while denigrating the Plaintiff's product.
12. Mr. Nigam, further clarifies that though the Plaintiff - Dabur is also a
registered proprietor of the mark - 'DABUR Chyawanamrut', the present
litigation only concerns with the impugned advertisement which was
released in print media on 21st and 22nd December, 2020. Reliance is placed
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:29.12.2020
15:53:29
by the counsel for the Plaintiff on following decisions of this Court:
• Dabur India Limited v. Emami Limited, 2004 75 DRJ 356;
• Reckitt Benckiser (India) Ltd. v. Hindustan Unilever Ltd., 2014 (3)
CHN (CAL) 527;
• Reckitt Benckiser (India) Ltd. v. Hindustan Unilever Ltd., [2020
(82) PTC 329(Del)];
• Tata Chemicals Ltd. Vs. Puro Wellness Pvt. Ltd. (2019 174 DRJ
454);
13. Mr. Sudhir Chandra and Mr. Sandeep Sethi, ld. Senior Counsels
appearing for the Defendant, submit that the law in this regard is quite well
settled. Vehement reliance is placed on the ld. Division Bench's judgment in
Dabur India Ltd. v. Colortek Meghalaya Pvt. Ltd. and Godrej Sara - Lee,
167 (2010) DLT 278, to submit that advertising forms a part of commercial
free speech under Article 19(1)(A). The advertisement of the Defendant
does not denigrate, disparage or defame the product of the Plaintiff. The use
of the term saadaharan or ordinary does not mean that the Plaintiff's
product is being denigrated. It merely means that the Defendant has better
and additional qualities. Mr. Chandra, ld. Senior Counsel further refers to a
circular issued by the Ministry of AYUSH to argue that in terms of the said
circular, various immunity boosting measures have been prescribed by the
Ministry and as per the said circular, an addition of tulsi and other
ingredients would boost immunity. It is on the basis of the said circular that
the claims in the advertisement have been made by the Defendant.
14. Mr. Sethi, ld. Senior Counsel appearing on behalf of the Defendant,
further submits that a perusal of all the other bottles in the market for
chyawanprash would show that none of the bottles are white in colour and
the depiction of a family is a common factor in all the bottles. He submits
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:29.12.2020
15:53:29
that the Court ought not to dictate how an advertiser should advertise its
product. He submits that sufficient freedom ought to be granted to the
advertising company to use its own creativity in order to promote their
products. Thus, it the submission on behalf of the Defendant that whether it
is chyawanprash or Chyawan Amrut, both are family products and that
therefore depiction of three family members with a white generic bottle and
brown coloured cap does not relate back to the Plaintiff.
15. Insofar as chocolate chyawanprash is concerned, it is submitted that
the same is not plead in the plaint. Further, it is urged that the use of the
expression "ordinary" is to convey the context and the existing products in
the market in general and not to defame or disparage the Plaintiff's product
in any manner. There are a large number of advertisements which use the
word "ordinary" or "saadharan". Reliance is placed by the ld. Senior
Counsel for the Defendant on the judgment in Dabur India Ltd. v. Wipro
Limited, 129 (2006) DLT 265 and Marico Limited v. Adani Wilmar Ltd.
[CS (OS) 246/2013, decided on 18th April, 2013]. It is further submitted that
there is no allegation of any factual miss-statement in the advertisement.
16. The matter has been heard in detail, on the ad-interim relief to be
considered by this Court. However, after the hearing, counsels for the
Defendant obtained instructions. Mr. Sandeep Sethi, ld. Senior Counsel
submits that the Defendant is willing to modify the impugned print
advertisement, in the following manner:
i) The word chyawanprash would not be pre-fixed by either of the
words - ordinary or saadharan, or any other adjective;
ii) The container which is currently being used to depict
chyawanprash would be modified into a rectangular container,
Signature Not Verified
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:29.12.2020
15:53:29
without the image of any family appearing on it and without any cap.
17. With these two modifications being carried out by the Defendant,
which is without prejudice to the rights and contentions of the parties, no
further orders are called for in this interim application. If any fresh
advertisement is issued by the Defendant which is comparative in nature, the
same shall strictly be in terms of the order contained above.
18. Application is disposed of in the above terms.
PRATHIBA M. SINGH, J
(VACATION JUDGE)
DECEMBER 28, 2020
Rahul/Ak
