Complete Absence Of Malicious Intention: Calcutta High Court Rejects Emami’s Plea To Restrain Dabur From Telecasting ‘Cool King’ Advertisement

The Calcutta High Court held that there was no direct or indirect reference to the product of Emami in Dabur's advertisement of ‘Cool King’.

Emami alleged the disparagement of its product, a prickly heat powder, marketed under the name and style of 'Dermi Cool' and 'Navratna'.

The Bench of Justice Sabyasachi Bhattacharyya and Justice Uday Kumar observed, “Upon carefully considering the submissions of the parties and on a close scrutiny of the two bottles – the one used in the offending advertisement and the bottle containing the products of the appellant - we find a marked difference between the two, which is visible to the naked eye. Whereas the appellant‟s bottle is of a tapering shape, having a green slanting cap with a distinct and unique notch, the bottle shown in the assailed advertisement is a uniform cylinder without any taper and has a round, level cap of black colour, which comes across as blackish in the visual depiction in the advertisement. Thus, the bottles are entirely different from each other, even without juxtaposing the two and going by the standard of a person of ordinary prudence and imperfect recollection.”

Senior Advocate Debnath Ghosh represented the Appellant, while Senior Advocate Sudipto Sarkar represented the Respondents.

Case Brief

It was the contention of Emami that in an advertisement of Dabur’s product ‘Cool King’, which is supposedly a similar product as that of Emami’s 'Dermi Cool', there is resemblance between the bottle shown by the protagonist of the advertisement as “Sadharan” with the unique tapering bottle of the Emami, which has a typical notch on the slanting cap of green colour.

Further, it was argued that the recall value in the public perception is high since the general public, who are the target group of the advertisement, would immediately connect the denigrated bottle with that of the Emami’s products, which would considerably undermine the goodwill of the Emami’s products in the public mind.

While the Counsel representing Dabur submitted that the bottle shown in the advertisement is different from the products of Emami. It was also argued that none of the criteria for getting an injunction in a disparagement suit have been satisfied, since there is no resemblance between the bottle being shown in the advertisement and that of the Emami’s products. The recall value argument is also baseless.

Court’s Analysis

The Court opined that there is no mouthing of the name of the Emami’s product at all and the bottle shown is completely different in shape, size and colour from that of the Emami’s product.

The Bench observed, “In the present case, while balancing the right of free commercial speech under Article 19(1)(a) and the right to do business under Article 19(1)(g) of the Constitution, we have to strike a balance between such rights of advertising its own product available to the respondent with the right of the appellant to protect its own product.”

Further, the Court noted that the use of the word “Sadharan” is not coupled with any such aspersion against the product of Emami or, for that matter, any other product. Also, the names of the Emami’s products have not been used at all by replacing only a part of it to create an impression in the mind of the viewer that the products are the same.

“We find a complete absence of any such malicious intention in the impugned advertisement in the case at hand”, the Court said.

It was also observed that the freedom of commercial speech of Dabur and its fundamental right to do business cannot be throttled on a vague perception of disparagement, which is completely illusory in the present case.

Accordingly, the Appeal was dismissed.

Cause Title: Enami Ltd. Dabur India Ltd.

Appearance:

Appellant: Senior Advocate Debnath Ghosh, Advocates Shuvasish Sengupta, Biswaroop Mukherjee, Mini Aggarwal, Ratnadipa Sarkar

Respondent: Senior Advocate Sudipto Sarkar, Advocates Sourajit Dasgupta, R. Jawaharlal, Megha Kumar, Sudhakar Prasad

Click here to read/download Judgment.