Back
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
Shekhar B. Saraf, J.
Dabur India Limited - Appellant
Vs.
Shree Baidyanath Ayurved Bhawan Pvt. Ltd. - Respondent
I.A. G.A. No. 1 of 2021 in C.S. No. 232 of 2021
Decided On : 08-02-2022
Constitution of India,1950 - Articles 19 (1) (a) and 19(2) - Drugs & Cosmetic Act, 1940 - Sections 3 (a), 30 and 29 - Qualities of its product with other rival products in market - Remove impugned advertisements from all electronic medium - Defendant on its official website and was also available for viewership on websites of various e-commerce platforms like Amazon, Flipkart and others - Defendant/respondent had published a comparative chart describing qualities of its product with other rival products in the market - Respondent had claimed that its has ‘52 herbs’ whereas its rivals have only ‘42 ingredients’ - Respondent/defendant asks a question to the viewer as to whether their is complete - Respondent highlights in the advertisement that its own product is complete and contains 52 ingredients - Advertisement conveys that while other Chyawanprash uses a ‘mixture of oil and ghee’ in their preparation contains only ‘100% Pure Desi Ghee’ - Advertisement further elucidates that other Chyawanprash which contains only ‘42 Ingredients’ - communicates that Baidyanath Chyawanprash is a complete Chywanprash which is made with traditional recipe - While other Chyawanprash uses ‘mixture of oil and ghee in their preparation’, Baidyanath Chywanprash uses only ‘100% Pure Desi Ghee’ - Advertisement further elucidates that other Chyawanprash which contain only 42 Ingredients, Baidyanath Chywanprash has power of complete 52 Ayurvedic Ingredients with benefits of fresh Amla and Saffron - Gives you better immunity, more energy and sharp mind
Finding of the court: Statement that Chyawanprash is available in market with ‘42 ingredients’ is a mischievous and false statement that would create confusion in minds of the general public - Comparison is not only deleterious but a factually false statement that denigrates all other brands of Chyawanprash. Precedents cited by both parties make it clear that true statements can be made even if it denigrates rival’s product, but false and misleading statements cannot be allowed under the guise of free speech - Video advertisement is disparaging and an action from this Court would lie - Advertisement shall be permitted to be shown on television, social media and other platforms
Result: Application disposed of
JUDGMENT
Shekhar B. Saraf, J.
Facts:
1. The plaintiff/petitioner has filed the present suit against an advertising campaign containing five impugned advertisements issued by the defendant/respondent one after the other during October and November 2021 in relation to its product "Baidhyanath Chyawanprash Special". Details of the impugned advertisements are as follows:
(a) Impugned Advertisement No. 1 (hereinafter referred to as "Annexure I") was released by the defendant on its official website (https://www.baidyanath.com/chyawanprash-special.html) and was also available for viewer ship on the websites of various e-commerce platforms like Amazon, Flipkart and others. The same has been removed by the defendant/respondent on November 25, 2021 based on an order passed by this court on the same date. In this advertisement the defendant/respondent had published a comparative chart describing the qualities of its product with other rival products in the market. The respondent had claimed that its Chyawanprash has 52 herbs' whereas its rivals have only 42 ingredients'. Thereafter, the advertisement mentions that respondent's product is made from 100% pure ghee' whereas its rivals have a 'mixture of vegetable oil and ghee'. The pictorial representation of this impugned advertisement is extracted below:
(b) Impugned Advertisement No. 2 or Print Advertisement-1 (hereinafter referred to as "Annexure-J") was released by the defendant in print media in a national daily newspaper Dainik Jagran on October 17, 2021. It was circulated only in the month of October, 2021 in the State of Uttar Pradesh. In this advertisement the respondent/defendant asks a question to the viewer as to whether their Chyawanprash is complete. Thereafter, the respondent highlights in the advertisement that its own product is complete and contains 52 ingredients. The advertisement conveys that while other Chyawanprash uses a 'mixture of oil and ghee' in their preparation, Baidyanath Chywanprash contains only 100% Pure Desi Ghee'. The advertisement further elucidates that other Chyawanprash which contains only 42 Ingredients', Baidyanath Chywanprash has the power of 'complete 52 Ayurvedic Ingredients' with benefits of fresh Amla and Saffron which gives you better immunity, more energy and sharp mind. The pictorial representation of this impugned advertisement is extracted below:
(c) Impugned Advertisement No. 3 or Print Advertisement-2 (hereinafter referred to as 'Annexure-K') was released by the defendant in print media in national daily newspaper Amar Ujala on November 12, 2021. It was circulated in the month of November, 2021 in the State of Uttar Pradesh. In this advertisement the respondent states that complete Chyawanprash is the one, which is formulated as per correct formulation. Thereafter, it further communicates that Baidyanath Chyawanprash is a complete Chywanprash which is made with traditional recipe. While other Chyawanprash uses 'mixture of oil and ghee in their preparation', Baidyanath Chywanprash uses only 100% Pure Desi Ghee'. The advertisement further elucidates that other Chyawanprash which contain only 42 Ingredients, Baidyanath Chywanprash has the power of complete 52 Ayurvedic Ingredients with benefits of fresh Amla and Saffron, which gives you better immunity, more energy and sharp mind. The pictorial representation of this impugned advertisement is extracted below:
(d) Impugned Advertisement No. 4 (hereinafter referred to as 'Annexure') is a L-band TV advertisement (L-shaped advertisement played on TV along with the content program for short duration) released by the defendant on national television channels from November 12, 2021 in channels like Dabangg TV, which is available for viewership across all major cable networks, DTH and online OTT platforms. In this advertisement the respondent states that complete Chyawanprash is the one that is formulated as per correct formulation. Unlike Annexure I, J and K it does not make any claim with respect t
SupremeToday
Point of law: Under Section 3 (a) of the Drugs & Cosmetic Act, 1940 and as agreed by both parties, there can be no Chyawanprash available in the market with 42 ingredients
The main legal point established in the judgment is that while comparative advertising is permissible, an advertiser cannot denigrate or disparage a rival product. The court emphasized the importance....
The use of the term 'Sadharan' in advertisements does not inherently imply disparagement if the context suggests substantial differences between competing products.
Descriptors like 'ordinary' or 'sadharan' do not constitute disparagement unless linked to a specific product, balancing trademark protection with freedom of speech.
Commercial advertisements must promote without disparaging competitors; misleading claims are impermissible under protection afforded to commercial speech.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
