In this case, Emami Ltd. had created an advertisement and TVC promoting its sugar free variant of chyawanprash. Aggrieved by the same, Dabur India Ltd., filed a suit against publication of these advertisements which it felt was meant to disparage “chyawanprash”. Then Emami modified its advertisement in accordance with the appellate Court’s judgment and submitted an affidavit stating that it will not publish its advertisement without making the modifications. Despite this, Dabur emphasized upon impugning the advertisements. The plaintiff contended that the defendant’s advertisement pertaining to sugar free chyawanprash was meant for diabetic patients and failed to disclose the same. It argued that by comparing its sugar free product with the general chyawanprash, the defendant was comparing two products which fall into different categories which is impermissible in law. Dismissing the plaintiff’s allegations, the defendant submitted that its advertisement is informative, providing consumers with a sugar free alternative of chyawanprash. It emphasized that its advertisement nowhere depicted that sugar is bad for health and was a mere informative advertisement. In order to evaluate, the court discussed the laws pertaining to comparative advertising and mentioned the following guidelines:
• An advertisement is commercial speech and is protected by Article 19 (1) (a) of the Constitution.
• An advertisement must not be false, misleading, unfair or deceptive.
• Of course, there would be some grey areas but these need not necessarily be taken as serious representations of fact but only as glorifying one’s product.
• While glorifying its product, an advertiser may not denigrate or disparage a rival product.
Issues
The primary issues dealt by the court were:
I. Whether the defendant, while advertising its product, can be permitted to compare its sugar free variant Chyavanprashad with the Chaywanprash which contains sugar?
The court noted that the plaintiff’s case was of generic disparagement as the plaintiff’s allegation revolved around the disparagement of “chyawanprash” and not its own product. The advertisement makes it apparent that the comparison has been made with the generic product “chyawanprash” and thus, the plaintiff’s product was not the subject matter of comparison. The court asserted that a competitor can declare his goods to be the best in the world, however while claiming that its goods are better than the competitor, he cannot refer to them as “bad”.
II. Is the defendant misleading and misrepresenting the consumers that chyawanprash is harmful?
Dismissing the plaintiff’s allegations that by comparing different categories of products i.e., sugar-free chyawanprash with sugar-based chyawanprash, the defendant is suggesting that chyawanprash is harmful even for a non-diabetic consumer, the court held that there was no misrepresentation or misleading declarations as the defendant was merely indicating that a healthier alternative is available and the same is in no way jeopardizing the plaintiff’s product.
Name: -Damini Pande
Roll No.: -M2111
Class: -F.Y.M.M. S
College Name: – Father C Rodriguez Institute of Management Studies