Applying the Delhi High Court decision in the case of Reckitt Benckiser (India) Pvt. Ltd. v. Hindustan Lever Limited [151 (2008) DLT 650], the Calcutta High Court has held that an advertisement claiming that Baidhyanath Chyawanprash Special is ‘enriched with 52 Ayurvedic herbs’ whereas ‘ordinary Chyawanprash’ are made ‘with 42 ingredients only’, is disparaging.
It observed that the comparison made by the defendant/respondent was specifically pointing towards deficiency of the other rival products including the petitioner’s product and that the claim made by the defendant about number of ingredients in Chyawanprash of the rival product was false and misleading.
Noting that the comparison with a number of ingredients, that is, 42 ingredients, was malicious and slanderous as the product cannot be complete with 42 ingredients as per the Drugs and Cosmetics Act, 1940, the High Court also held that when the defendant highlights that other Chyawanprash contain only 42 ingredients, which is an untrue statement, it cannot claim right to free speech. It was of the view that such a comparison was slanderous and mischievous, and accordingly, amounts to disparagement.
The High Court in this case of Dabur India Limited v. Shree Baidyanath Ayurved Bhawan Pvt. Ltd. [Judgement dated 8 February] also summarised the key principles that are required to be kept in the Court’s mind before deciding on whether the offending advertisement is disparaging or is a mere puffery.
According to the Court, in disparagement, the Court must decide whether a reasonable man would take the claim being made as being a serious claim or not and the impugned advertisement campaign has to be looked into with a broader perspective to decide whether a serious comparison is made by the alleged infringer.
It noted that a comparison in the nature of ‘Better or Best’ based on truthful claims is permitted, but comparison in the nature of ‘Good v. Bad’ is not. The Court observed that if the advertisement gives out an impression that the rival product has a defect or demerit (which is not true) then such impression would make it disparaging.
Further, observing that the comparison between rival products is allowed only to the extent of ‘Puff’ and honest trade practice, the Court noted that generic disparagement of a rival product is equally objectionable. Lastly, the Court observed that the comparative advertising campaign should be ‘comparison positive’.