Descriptors like 'ordinary' or 'sadharan' do not constitute disparagement unless linked to a specific product, balancing trademark protection with freedom of speech.

JUDGMENT :

Ravi Krishan Kapur J.

1. In a suit for disparagement and infringement, the petitioner seeks interim orders of restraint against the respondent, inter alia, from telecasting, displaying, airing, disseminating a television commercial launched by the respondent on 28 June, 2024 for its product “Dabur Cool King Icey Perfume Talc” (the impugned advertisement).

2. Briefly, the petitioner is inter alia engaged in the Fast Moving Consumer Goods (FMCG) sector and manufactures talcum powder sold under the mark ‘Navratna’ and ‘Dermi Cool’. It is alleged that the market share of both the above products of the petitioner is approximately 17% and 25.5% respectively. It is contended that the colour combination of sea green and white colour skin in relation to talc and the distinctive bottle and cap design alongwith the green and white colour combination in respect of prickly heat powders are exclusively associated with the petitioner’s products. The respondent is a trade rival and manufacturer of FMCG products including talcum powder.

3. The story board of the offending commercial is as follows:

4. It is contended that the impugned advertisement makes a direct reference to the products of the petitioner. The same feature, configuration, design and colour of the container bottle with the unique cap depicted in the impugned advertisement which is only identifiable with the petitioner’s product. It is also contended that the word ‘sadharan’ displayed on the bottle in the impugned advertisement in white colour with a green coloured cap having a distinctive tapered notch end can only be identified with the petitioner’s products. The use of the word ‘sadharan’ also reflects poorly on the petitioner’s products. In conclusion, the impugned advertisement seeks to convey that the products of the petitioner are ineffective and useless.

5. It is contended that the impugned advertisement has also been deliberately and intentionally conveyed in the electronic and social media which has a higher impact and outreach and has been displayed more than 2000 times over different media formats including You Tube and Instagram. As such, by airing the impugned advertisement the respondent has particularly identified the petitioner’s product while also seeking to run down the entire class of talcum and prickly heat powders.

6. In such above circumstances, by specifically identifying the petitioner’s product and describing them as ‘ordinary’ or ‘sadharan’, the idea conveyed in the mind of any reasonable consumer is that the petitioner’s products are bad. The respondent is also guilty of denigrating and disparaging all other powder products by describing the entire class of talcum powders to be ordinary, ineffective and useless. As such, the impugned advertisement also disparages the genus of talcum and prickly heat powders in general and specifically targets the products of the petitioner. In support of its contentions, the petitioner relies on the decisions in Hindustan Unilever Limited vs. Reckitt Benckiser (India) Pvt. Ltd. MANU/DE/2447/2023, Pepsi Co. Inc. vs. Hindustan Coca Coal Ltd. 2003 SCC OnLine Del 802, Annamalayar Agencies vs. WS & Sons Pvt. Ltd. 2007 SCC OnLine Mad 1645, Dabur India Limited vs. Colgate Palmolive India Ltd. 2005 (79) DRJ 461, Parle Products Private Limited vs. Britannia Industries Ltd. 2022 SCC OnLine Del 4141, Procter & Gamble Hygiene and Healthcare Limited vs. Reckitt Benckiser (India) Pvt. Ltd. 2022 SCC Online Mad 1747, Dabur India Limited vs. Emami Limited 2004 (75) DRJ 356, Dabur India Limited vs. Colgate Palmolive India Ltd. 2004 (77) DRJ 415, Marico Limited vs. Dabur India Limited MANU/WB/1083/2022.

7. On behalf of the respondent it is contended that word ‘sadharan’ can never per se be disparaging and has only been used in a comparative sense without any sense of malice. The entire case of generic disparagement is also untenable. In any event, the petitioner themselves have on numerous occasions in selling and marketing their pro