On May 14, the Delhi High Court passed an order in the favour of Horlicks. The Court restrained Zydus Wellness from broadcasting the impugned advertisement.
Facts of the case
Plaintiffs have filed the present suit seeking prayer of a permanent injunction. They want the defendant to restrain from telecasting the advertisement. For this, they contended that the advertisement amounts to intentional and deliberate disparagement.
There have been lawsuits between the parties related to advertisement of their products. In 2017, the plaintiffs came across a print advertisement of the defendant. The defendant compared one cup of its product, Complan, with two cups of the plaintiff’s product, Horlicks.
Aggrieved by this, plaintiffs filed a suit against the defendant. Subsequently, the learned Single Judge of this Court granted an ex-parte ad-interim. The order restrained the defendant from publishing the said advertisement. The Court later dismissed the application. As the defendant made an amendment in their print advertisement, they added a disclaimer about the serving size. The disclaimer read “as per on pack recommended serve size (Complan 33g. Horlicks 27g)”.
The Present Case
As a result, the plaintiffs have filed an appeal against this order. Moreover, The appeal before the Division Bench of this Court is still pending.
In July 2019, the defendant had launched a TV advertisement disparaging their product. The television channels telecasted the advertisement in various languages. Hence, the plaintiffs have filed the case before this Court.
Arguments by the Plaintiffs
The plaintiffs contend that the manner and storyline of the advertisement are malicious. The defendant is telecasting the same to denigrate the plaintiff’s product Horlicks. The defendant can puff its product. But, it is not allowed to denigrate the product of other parties.
The learned counsel for the plaintiffs contends the immense power of the television. As the mediums of communication, there is no comparison between print media & television. Further, there is a difference in the serving size of the plaintiffs and the defendant. Yet, the cup size in the advertisement is the same. Thereby, it creates confusion in the mind of the customers.
Additionally, the television advertisement is not true. It gives a misleading message to the public. The message given is that the defendant’s product is double that of the plaintiff’s. Hence, the Court dismissed the petition for the print media. This was because the defendant made an amendment clarifying the serving size.
But, in the broadcast, there is no voiceover qua the serving size. The clip is six seconds long. Hence, there is hardly any time for any person to note the written disclaimer. The defendant is violating the general principles of advertisements. They are also disparaging the products of the plaintiffs. The plaintiff’s claim is that the advertisement is false, misleading, unfair and deceptive.
The plaintiff’s relied on the decisions of Dabur India vs. Colortek Meghalaya Pvt. Ltd. and Ors. 167 (2010) DLT 278, Gillette India Limited vs. Reckitt Benckiser (India) Pvt. Ltd. MANU/TN/1910/2018, and Havells India Ltd. vs. Amritanshu Khaitan & Ors., 2015 (62) PTC 64 (Del).
Arguments by the Respondent
The defendant’s counsel contends the underlying impression of the advertisement. The intent of the advertisement is to educate consumers. The advertisement shows the difference in the protein content of the two products. One cup of Complan (33 grams) being equal to two cups of Horlicks (27 grams). ( As per the recommended cup size as provided in their respective packages). Hence, the impugned advertisement is neither misleading nor disparaging. They contend that it is factually correct.
The respondents claim that the products can be compared using “per serve size” metric. Especially when both parties choose to recommend the serving size. The respondent stated that creative latitude is permissible to the advertiser. Hence, when there is some basis of comparison, this Court is not to interfere. Considering this case is not a case of gross abuse either.
The Respondents contended that the Plaintiffs have not made out a prima facie case. They also do not have the balance of convenience in their favour.
The Respondent placed their reliance on Havells India Ltd. (supra), Dabur India Ltd. (supra), Marico Limited vs. Adani Wilmar Ltd., 2013 (54) PTC 515 (Del), Colgate Palmolive Co. & Anr. vs. Hindustan Unilever Ltd, 2014 (57) PTC 47 (Del) (DB).
The Court opined that the comparison was based on the serving size recommended by the parties. The modified print advertisement clarified this. They stated the disclaimer in the middle of the Print.
The Court distinguished the presence of disclaimer between the Print and TV advertisement. The main concern of the plaintiff is that the advertisement is only for six seconds. Thus, there is not enough time for the viewer to see the disclaimer. Further, the voiceover does not clarify the disclaimer added in the print advertisement.
The Court stated that there can be no dispute about the comparison. They said basing it on the recommended serve size is valid. The main question is – whether the disclaimer as in the print advertisement is visible and audible in the impugned electronic medium.
The Court observed no voiceover about the serving size in the advertisement. They also agreed that the time is insufficient to read the said disclaimer. The Court held that as on a bare looking at the advertisement- a viewer only sees a comparison of one cup of Complan with two cups of Horlicks. There is no reference to the serving size seen by the viewer in one look. The Court stated that in view of this, the electronic advertisement clearly disparaging.
The Court reiterated the case of Gillette India Ltd., that the electronic medium is a very powerful medium of communication. It leaves an indelible mark on the mind of the viewer.
Court’s Observations on Respondents’ Contention
With regards to the Respondents contention, the Court said two things:
- The plaintiffs have made out a prima face case in their favour.
- Not granting injection would lead to the irreparable loss suffered by the plaintiffs.
The Court emphasises the fact that TV viewership is continuous. Thus, the balance of convenience lies in favour of the plaintiffs. Also, the consumer viewed it on a daily basis. Hence, every new person who views the advertisement would be clearly misled.
The Single bench of Justice Mukta Gupta disposed of the application. The Court heard the matter via video conferencing. The Court restrained Zydus Wellness from broadcasting the impugned advertisement.
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