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Synopsis

The Delhi High Court has recently restrained Dabur from circulating its WhatsApp advertisements on “Dabur Amla Hair Oil” featuring Bollywood actor Deepika Padukone.

Notably, a suit was filed by Marico Limited alleging disparagement of the goodwill of its product ‘Nihar Natural Shanti Badam Amla Hair Oil’.

The single-judge bench of Justice Navin Chawla held that the plaintiff had been able to make out a prima facie case as far as the WhatsApp message/Advertisement was concerned.

“Accordingly, the defendant, either directly or through its servants, agents, employees or any other persons working under it, is restrained from circulating the WhatsApp message/Advertisement, during the pendency of the suit”, court has ordered.

Justice Chawla also clarified that the observations made in the order are “only prima facie in nature” and should not be considered as a “final opinion” of the court or as binding when the suit is finally decided.

The plaintiff Marico limited had sought an ad interim injunction restraining Dabur from sharing or forwarding its WhatsApp advertisement or print advertisement allegedly disparaging the goodwill and reputation of Marico’s product ‘Nihar Natural Shanti Badam Amla Hair Oil’ and the registered Nihar trademarks.

It was argued that the print advertisement’s opening statement “Yaad Rakhna, Sasta Aawla, balo ko mehenga padega” is alarming and threatening the consumers against all cheaper in price Amla Hair Oils as being inferior and harmful. It claimed that this amounts to generic disparagement.

Court was further told that this was not mere puffery but a false declaratory representation of fact which amounts to disparagement. “Sasta amla‟ is a direct reference to the plaintiff’s product, which has been regularly advertised for almost 12 years as being cheaper in comparison to defendant’s product, the court was told.

Senior Counsel for the plaintiff also argued that the impugned advertisement, invoked some memory of plaintiff’s product and defames it.

The court, however refused to pass ad-interim injunction on the print ad and said that Marico had not been able to “make out a prima facie case against the print advertisement”.

“It is merely suggestive of the fact that there could be severe repercussions in using cheaper amla hair oils-cheaper being in quality and price. The leap of imagination that the plaintiff wants this court to take is too wide”, it said.

The single-judge bench stated that a consumer reading the print advertisement would not be able to relate the term ‘sasta amla’ to the plaintiff’s product “because neither is the bottle in the advertisement referring to the plaintiff’s product, nor is it directly or indirectly implying the plaintiff’s product”.

“It is also not a generic disparagement of all cheaper amla hair oil. In my opinion, the advertisement is to be judged from point of view of an ordinary consumer and his perception of the advertisement, which in my prima facie opinion would be to see the advertisement as a puffery, rather than from a sensitive competitor like the plaintiff,” the court further added.

With respect to the WhatsApp ad, the court observed that though the WhatsApp message/advertisement shows that the impugned print advertisement is aimed at Marico, however, the ordinary consumer would not have the benefit of having the WhatsApp advertisement/message along with the print advertisement before him/her.

“It would only be the persons who receive the WhatsApp advertisement/message along with the print advertisement, who would be able to make the connection between the two. Even otherwise, the WhatsApp message/advertisement merely reflects that the print advertisement is aimed against the plaintiff as it calls upon the shop employees to display print advertisement, therefore, the print advertisement has to be considered independent of the WhatsApp message/advertisement and the two cannot be read together, as has been prayed for by the plaintiff,” the court said in its June 2 order.

“Accordingly, the defendant, either directly or through its servants, agents, employees or any other persons working under it, is restrained from circulating the WhatsApp message/Advertisement, during the pendency of the Suit. The defendant must bring this order to the notice of its employees”, it ordered.

Case Title: Marico Limited v. Dabur India Limited