The Plaintiff filed a suit against the defendant seeking a permanent injunction. This was to prevent its company from telecasting an impugned advertisement. Herein, the Complaint was a deliberate attempt to defame the plaintiff’s health food drink.
Brief facts of the case
The Plaintiff is a recognized corporation. Its product, Horlicks, is being sold globally. It is one of the reputed drinks that acquired a trademark in 1943. The product is a complete health drink that caters to the needs of the consumers. It contains essential nutrients that have attracted consumers. The product aims at the development of children. While in this case, the defendant is a competitor. They manufacture and sell a nutritional drink under the trademark, Complan. In July 2019 the plaintiff came to know that the defendant had launched a TV commercial (TVC). In that ad, they defamed the plaintiff’s product, Horlicks. The advertisement was defamatory and it abused the Plaintiff’s product. The law entitles the defendant to praise its product. However, it is not allowed to abuse the product of other parties in the process. Moreover, in this case, the parties have several prior litigations about the same.
Contentions of the Parties
The learned counsel for the plaintiff said that firstly, the two products are different. Secondly, their comparison is misleading. Thirdly, the message given by the defendants is that their product is double that of the plaintiffs. Fourthly, they contend that comparing products can confuse the viewers. Further in this regard, they submit that the 6-second advertisement violates the general principles by disparaging the products of the plaintiff. They further submit that the voiceover in the advert does not clarify the portion size, and so this act of the defendants as false, misleading, unfair, and deceptive.
In Contrast, the Defendant’s counsel says that the intent and effect of the impugned advertisement were to measure the protein. It is also to educate the consumers about the protein in one cup of Complan as against Horlicks. Moreover, the said that the impugned advertisement is neither misleading nor disparaging. They submit that it is correct and not defaming. Additionally, the comparison of products as per the size is an accepted method of comparison. Furthermore, this method is essential, as serving per size provides every product with an assurance for safe and effective consumption of the said product. They also justify the same by saying that a lesser quantity won’t serve the purpose and an excess quantity of the health drink is detrimental to health.
The High Court accepts the view of the Defendant of the serving size of their product in comparison to Horlicks. However, it also agrees with the grievance of the plaintiff about the voiceover’s absence in the TVC. It said that the printed advert is not visible and audible in the impugned electronic medium. Also, six-seconds is too less a time for anyone to be able to notice the disclaimer on the TVC. The Court said:
“This Court finds that on playing the TVC, there is no voiceover. There is no instruction or disclaimer with regard to the serving size. Also, the proper time to read the said disclaimer is not given. Keeping this view, the present advertisement in the electronic media would be disparaging. A bare look at the advertisement, a viewer can only see a comparison of one cup of COMPLAN with two cups of HORLICKS. There is no reference to the serving size.”
The High Court of New Delhi ordered the defendant to restrain from advertising and to avoid the impugned television commercial. Further, it was said that this should remain in its present form till the disposal. The appeal was hence disposed of.
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