Advertiser Ought To Have Freedom To Make Ads With Generic Comparison, Can’t Object Unless Representation Is False: Delhi HC
The Delhi High Court has held that an advertiser ought to have the freedom to make advertisements with generic comparison. The Court further noted that objection cannot be raised unless representation being made is absolutely false or misleading.
The bench of Justice Prathiba M. Singh observed that “An advertiser ought to have the freedom to make advertisements with generic comparison highlighting the features of its own product and if the same is done without an allusion to any market leader, objection cannot be raised unless representation being made is absolutely false or misleading.”
The Court also noted that “The purpose of advertising any product is for marketing the attributes of that product. Such attributes could be unilateral or relative in a generic manner. It cannot be said that every generic comparison would be referencing to the market leader which would, in the opinion of the Court, be curtailing freedom of advertising to a considerable extent. Mere allusions, in the absence of a decipherable comparison would not be sufficient to make out a case of generic disparagement.”
The Court made this observation while dealing with the suit filed by the plaintiff-Zydus Wellness Products against Defendants-Dabur India Limited seeking permanent injunction restraining disparagement, misrepresentation, unfair competition etc.
Senior Advocate Chander Lall appeared for Plaintiff- Zydus Wellness Products whereas Senior Advocate Rajiv Nayar appeared for Defendants-Dabur.
The grievance of the plaintiff was that a TV commercial by Dabur India Limited had disparaged the Plaintiff’s product ‘GLUCON-D TANGY ORANGE’ .
The Plaintiff claims that the impugned TV Commercial 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.
The Court while refusing to pass an interim Order of injunction observed that the impugned TVC merely highlights the qualities of the Defendant’s product and it does not disparage any orange glucose powder drink.
The Court observed that the comparison being made in the impugned TVC might be unfavourable to the Plaintiff, but it cannot be held to be disparaging.
“The impugned advertisement is by and large truthful and there is no falsity involved. Therefore, there is no serious misrepresentation of fact on part of the Defendant in the impugned TVC.”, the Court noted.
“In the absence of any disparaging uttering, still or image in the impugned TVC, this Court is unable to arrive at a conclusion merely on the basis of the market share of the Plaintiff that the Plaintiff’s product is being disparaged or there is any generic disparagement.”, the Court added further.
Cause Title- Zydus Wellness Products Ltd. v. Dabur India Limited