Advertisements can highlight a product's strengths, but not disparage competitors. Misleading claims, even when made as puffery, may be actionable.

JUDGMENT

Prathiba M. Singh, J. This pronouncement has been done through hybrid mode.

I.A. 7312/2022(u/O XXXIX R 1 AND 2 CPC)

Background Facts

2. The present suit for permanent injunction restraining disparagement, misrepresentation, unfair competition, dilution, rendition of accounts, delivery up, damages, etc has been filed by the Plaintiff-Zydus Wellness Products Ltd. against the Defendant-Dabur India Limited. The suit has been filed seeking restraint against two commercials/video advertisements released by the Defendant for the promotion of its product `DABUR GLUCOPLUS-C ORANGE'.

3. The Plaintiff avers that it is one of the leading companies engaged in manufacturing and marketing of wide range of consumer products. In the year 2019, the Plaintiff merged with Heinz India Pvt. Ltd. and by the scheme of amalgamation became the owner of trade marks and all intellectual property in the brands such as Nycil, Glucon-D, Complan, etc. The Plaintiff through its predecessor has several trade mark registrations in relation to the mark `GLUCON-D' which are valid and subsisting as on date. It is the case of the Plaintiff that `GLUCON-D' glucose powder was first launched in 1933 by the Plaintiff's predecessor-in-title. As per the plaint, `GLUCON-D' is the leader in glucose powder segment in India and it had a market share of more than 58% for the year 2021. `GLUCON-D' is sold in four flavours-regular, tangy orange, nimbu pani, and mango punch.

4. It is the case of the Plaintiff that one of the most popular variants of `GLUCON-D' range of products of the Plaintiff is `GLUCON-D TANGY ORANGE' which has been marketed and sold by the Plaintiff through its predecessor for decades. `GLUCON-D TANGY ORANGE' is stated to be the market leader in the orange glucose powder drink category with market share of 72% for the period between April, 2021 till March, 2022, and 74% for the period between January, 2022 till March, 2022 in the orange glucose powder category.

5. The Plaintiff's product bearing the mark `GLUCON-D' are claimed to have been a runaway success due to excellent promotion, high recall endorsement activities coupled with superior quality. The sales of the Plaintiff's `GLUCON-D' product has been to the tune of Rs.535 crores in the year 2018. The sales figures for `GLUCON-D TANGY ORANGE' variant for the corresponding period is Rs.231 crores. The Plaintiff is stated to have expanded Rs.24 crores in the sales promotion of the `GLUCON-D' products.

6. On 27th April, 2022, the Plaintiff came across a television commercial of the Defendant in Bengali language promoting its product `DABUR GLUCOPLUS-C ORANGE' on a Bengali news channel (hereinafter `impugned TVC'). On 29th April, 2022, the Plaintiff came across a longer version of the impugned TVC which was also aired by the Defendant on the same Bengali news channel. The longer version of the impugned TVC has two extra frames. The grievance of the Plaintiff in the present suit is that the impugned TVC denigrates and disparages all orange glucose powder drinks. In particular, the TVC disparages the Plaintiff's product `GLUCON-D TANGY ORANGE' which is the market leader in orange glucose powder drinks. The Plaintiff claims that the impugned TVC gives the impression that all the orange glucose powder drinks are entirely inefficacious in providing energy and only the Defendant's product is capable of providing energy.

Theme of the Impugned TVC

7. The storyboard of the impugned TVC launched by the Defendant as set out in the plaint is ext