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2023 Supreme(Online)(DEL) 16256
DELHI HIGH COURT
DABUR INDIA LIMITED – Appellant
Versus
THE ADVERTISING STANDARDS COUNCIL OF INDIA & ANR. – Respondent
CS(OS)-737_2023
Advertising is part of commercial speech protected under Article 19 (1) (a) of the Constitution and some amount of 'puffery' and hyped-up advertisements are permissible as long as they do not extend beyond the grey areas and the assertions made are reasonable.
Headnote:
ADVERTISING - ASCI JURISDICTION - INTELLECTUAL PROPERTY DIVISION - COMMERCIAL SPEECH
Fact of the Case:
Dabur India Limited filed a suit challenging the Advertising Standards Council of India's (ASCI) order directing it to modify its advertisement for 'DABUR RED PASTE' on the grounds that it was misleading and constituted an unfair portrayal and exaggeration. ASCI contested the jurisdiction of the Intellectual Property Division (IPD) of the Delhi High Court, arguing that the suit did not relate to comparative advertising or a commercial dispute.
Finding of the Court:
The Court held that the advertisement could not remain injuncted forever and that advertising is part of commercial speech protected under Article 19 (1) (a) of the Constitution. The Court found that the impugned advertisement was not without any basis and that some credence could be given to the report relied upon by the Plaintiff, which indicated that it was selling one of the major toothpaste brands. The Court permitted the Plaintiff to publish the advertisement with a slight modification, replacing the phrase 'World's number 1 Ayurvedic paste' with 'World's leading Ayurvedic paste'.
Issues: 1. Whether the IPD of the Delhi High Court has jurisdiction over the suit. 2. Whether the impugned advertisement is misleading and constitutes an unfair portrayal and exaggeration.
Ratio Decidendi: 1. The Court held that the suit did not relate to comparative advertising or a commercial dispute and, therefore, did not fall within the subject matter of intellectual property rights under the IPD rules. 2. The Court found that the advertisement was not false, misleading, unfair, or deceptive and that some amount of 'puffery' and hyped-up advertisements are permissible as long as they do not extend beyond the grey areas and the assertions made are reasonable.
Final Decision: The Court permitted the Plaintiff to publish the impugned advertisement with a slight modification, replacing the phrase 'World's number 1 Ayurvedic paste' with 'World's leading Ayurvedic paste'.
$~21
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IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 12th December, 2023
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CS(OS) 737/2023 & I.A. 22579/2023
DABUR INDIA LIMITED
..... Plaintiff
Through:
Mr. Akhil Sibbal Sr. Adv. with Mr.
R. Jawahar Lal, Mr. Anuj Garg &
Ms.
Asavari
Jain
Advs
(M.
9958996311)
versus
THE ADVERTISING STANDARDS
COUNCIL OF INDIA & ANR.
..... Defendants
Through:
Ms. Avni Singh, Adv. for D-1 (M.
9958018998)
Mr. Vedansh Anand Govt. Pleader.
and Mr. Karan Arora, Advs. for D -
UOI (M. 8076802450)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
2. The present suit has been filed by the Plaintiff - Dabur India Limited
seeking inter alia stay of the order dated 30th September, 2023 issued by
Defendant No. I-Advertising Standards Council of India (hereinafter, ASCI).
3. The issue in the present suit is in respect of an advertisement published
by the Plaintiff for ‘DABUR RED PASTE’, extracted below:
Digitally Signed
By:RAHUL
Signing Date:14.12.2023
18:34:18
Signature Not Verified
4. This advertisement was challenged by Defendant No.2 - Vi-John
Healthcare India LLP, and a complaint was raised by it before the ASCI. The
ASCI, vide email dated 13th July, 2023 intimated the Plaintiff regarding the
complaint by Defendant No.2. Further, it sought clarifications regarding the
Plaintiffs claim of ‘World’s No. l Ayurvedic paste’ along with documentary
proofs.
5. In response to the said email, the Plaintiff inter alia submitted market
research studies conducted by Mordor Intelligence Pvt Ltd, and disseminated
the said documents to the ASCI’s technical expert. Nevertheless, the CCC of
Digitally Signed
By:RAHUL
Signing Date:14.12.2023
18:34:18
Signature Not Verified
ASCI expressed its dissatisfaction, specifically concerning the authenticity of
the data source supporting a claim such as ‘World’s No.l Ayurvedic paste’
which purports to display global leadership for its ayurvedic toothpaste.
6. The ASCI, vide the impugned order dated 30th September, 2023,
directed the Plaintiff to modify its advertisement and restrain itself from
publishing it, on the grounds that the said advertisement is misleading and
constitutes an unfair portrayal and exaggeration, contrary to Clauses 1.1, 1.4
and 1.5 of the ASCI Code.
7. Vide order dated 24th November, 2023, the Court directed ASCI to cite
relevant case laws in respect of the preliminary objection of the jurisdiction.
The Court also observed that since the Plaintiff has not republished the
advertisement, ASCI shall not send the impugned recommendation dated 30th
September 2023 to its members, if not already sent. This would ensure that
the publications of other advertisements of the Plaintiff are not jeopardised in
any manner
8. Ms. Avni Singh, ld. Counsel for the ASCI contests the jurisdiction of
the Intellectual Property Division (hereinafter IP Division) of the Delhi High
Court. She has handed over a short note on the issue of jurisdiction as per
order dated 24th November, 2023.
9.
Considering the grounds raised, this Court deems it appropriate to
direct the ASCI to file a short reply to the application under Order XXXIX
Rules 1 & 2 CPC and a written statement, if so advised raising the issue of
jurisdiction.
10. It is her submission that under the IPD rules, as per rule 2 (i)
`comparative advertising’ forms a part of Intellectual Property Rights subject
matter. However, the present suit would not be a suit relating to comparative
Digitally Signed
By:RAHUL
Signing Date:14.12.2023
18:34:18
Signature Not Verified
advertising or even a commercial dispute as held in Havells India Limited
v. Advertising Standards Council of India, 227 (2016) DLT 719.
Accordingly, let a reply be filed within two weeks. Rejoinder thereto be filed
within two weeks thereafter.
11. On behalf of the Defendant No.2- Vi-John Healthcare India LLP, ld.
Counsel Mr. Neeraj Gr
