JUDGMENT :

Ravi Krishan Kapur, J.:

1. This is an action for disparagement and infringement.

2. The petitioner is a reputed manufacturer and distributor of Fast Moving Consumer Goods (FMCG). The suit pertains to a hair product manufactured by the petitioner namely Nihar Naturals Shanti Badam Amla Hair Oil. The respondent is also a well known manufacturer of FMCG products. The respondent also manufactures hair oil under the mark of Dabur. The respondent manufactures two variants of AMLA HAIR OIL namely Dabur Amla Hair Oil and New Dabur Amla Hair Oil. Both parties are competitors and trade rivals in the FMCG market.

3. The grievance of the petitioner pertains to the advertisements published in several newspapers having wide circulation all over India by the respondents both in print and in electronic form which are “Annexure H” and “Annexure I” respectively to this application. The impugned advertisements, inter alia, contain the following caption “DABUR AMLA DE SHANTI KE MUKABLE (up to) 50% ZYADA MAZBOOT BAAL” (in Hindi Language). There is also disclaimer to the advertisement to the effect that

“UTPAD NIHAR SHANTI AMLA KE SHABD, DEVICE/LABEL MEIN TRADEMARK KE ADHIKAR ‘MARICO LIMITED’ KE PASS HAIN. PACK SHOTS UDAHARAN KE LIYE DIKHAYE GAYE HAIN. VASTVIK PACK KA AKAR ALAG HO SAKTA HAIN” (in Hindi Language). From the disclaimer it is evident that the respondent is fully aware that the petitioner is the owner of registered trademark and the lable mark “Nihar”.

4. It is alleged on behalf of the petitioner that the pictorial impact of the impugned advertisements demeans and disparages the petitioner’s product and conveys a clear message to the customers that the petitioner’s product are ineffective and useless. In addition, to the false claim of having 50% of more efficacy, the petitioner’s product is also depicted as an unattractive purchase for consumers and does not serve the intended purpose. It is also alleged that the respondent has falsely claimed that their product i.e. Dabur Amla hair oil when compared to the petitioner’s product i.e. Nihar Natural Shanti Amla hair oil gives up to 50% stronger hair thereby conveying that, the petitioner’s hair oil is ineffective. Thus, it is contended on behalf of the petitioner that, the respondent has ex facie rubbished the petitioner’s product by causing the impugned advertisements to be published.

5. On behalf of the respondent it is contended that, the respondent is entitled to by means of comparative advertising show a competitor’s product by naming the competitor as long as use of the competitor’s mark is honest. It is further contended that the impugned advertisements constitutes commercial speech and is protected under Article 19 (1) (a) of the Constitution. Moreover, even under the Advertising Standard Council of India Guidelines, the respondent is permitted to publish the impugned advertisements. The impugned advertisements are legitimate, honest, truthful, well substantiated and statistically proven. Hence, the impugned advertisements are permissible in law and do not constitute any disparagement nor infringe the petitioner’s trademark. The respondent also relies on separate Study Reports which are referred to in the impugned advertisements to contend justification as a defence to this action.

6. Upon this suit being filed, a Co-ordinate Bench at the ad interim stage had, by an order dated 27 December, 2021 inter alia held as follows :

“In view of the aforesaid, as the publication of the advertisement was done on 24th December, 2021, the petitioner has approached immediately before this Court to consider the urgency.

The defendant/respondent is restrained from publishing the advertisement in pages 67 to 74 of the petitioner without the leave of this Court in any manner whatsoever from printing or disseminating or telecasting or broadcasting or publishing or otherwise communicating to the public or from making available the impugned advertisement or any part thereof or any other advertisemen