Harsh words not a thief of reputation

In the recent case of Marico Limited v Dabur India Limited, the plaintiff applied to the Delhi High Court for an interim injunction restraining the defendant from communicating or sharing print and WhatsApp advertisements. Marico alleged that such advertisements disparaged its product, Nihar Natural Shanti Badam Amla Hair Oil and its registered trademarks. The plaintiff argued that the statement in the print advertisement “Yaad Rakhna, Sasta Aawla, balo ko mehenga padega” or “Remember, if you use cheap gooseberry, your hair will suffer” constituted generic disparagement and a false representation of fact.

Marico claimed that the advertisement, featuring a bottle resembling its product, marked with a large red cross, suggested a rejection of its offering. A WhatsApp message circulating at the same time showed a boxing glove knocking down Marico’s bottle, indicating a targeted effort against the plaintiff and its product.

However, the defendant argued that the term, sasta, in its print advertisement neither disparaged the plaintiff’s product nor was misleading. The advertisement did not mention the plaintiff’s product. Sasta referred to hair oils that were cheap in quality and price, asserting the superiority of their Amla hair oil over inferior and cheaper alternatives.

In assessing whether the print advertisement could be disparaging, the court applied the test of an ordinary average consumer and its impact on them. The court relied on the decision in Pepsi Co Inc and Ors v Hindustan Coca-Cola Limited, which held that in deciding the question of disparagement, the intent, manner and storyline of the commercial, along with the message sought to be conveyed, must be considered.

The court held that of these factors, the purpose of the commercial is important. If an advertisement ridicules or denigrates the products of a competitor, it amounts to disparagement. However, if the advertisement merely claims the qualities of the product to be superior without deriding the other product, that is not actionable. Mere puffery is not actionable. The court held that a manufacturer can claim their goods to be better or the best, but if comparing the goods of another, the producer cannot slander or defame the competitor’s goods or call them bad or inferior.

The court cited a previous judgment of the Bombay High Court involving Marico that held a similar advertisement did not imply the inferiority of all cheaper Amla hair oils. It only aimed to caution consumers about the potential risks of using such products, highlighting the importance of quality. A consumer reading the print advertisement would not associate the term sasta amla with the plaintiff’s product, as the bottle in the advertisement was neither referring to nor directly or indirectly implying the inferiority of the plaintiff’s product. It was not a generic disparagement of all cheaper Amla hair oils. The court classified the advertisement as puffery rather than defamatory.

The Delhi High Court accepted that the phrase “Asli Amla, Dabur Amla” in the print advertisement was a registered trademark of the defendant, entitling them to use it. It did not imply that only the defendant’s product was genuine but emphasised the need to pay attention to quality. The court also dismissed the plaintiff’s challenges regarding the claim of two times extra strength using the defendant’s hair oil, as this claim had been previously considered by courts and regulatory bodies.

The plaintiff claimed that the WhatsApp advertisement circulated with the defendant’s concurrence, while the defendant denied any involvement. Evidence showed that the defendant’s employees were involved in originating and circulating the WhatsApp message. However, the court relied on an email exchange between the defendant and its advertising agency, focusing on the strength and quality of the product. The court held that the intent of the employees was not to disparage the plaintiff’s product but to convey the superiority of their product.

The court found that the print advertisement contained no evident reference to the plaintiff’s product. The term sasta amla in the advertisement had no direct or indirect implications for the plaintiff’s product. Marico’s application was refused. As the defendant had no objection to an injunction against the WhatsApp advertisement, that was granted.

Manisha Singh and Omesh Puri are partners at LexOrbis.