Dabur India Limited Petitioner v. Emami Limited

Dr. Mukundakam Sharma, J.:—By this order, I propose to dispose of the application, which is filed by the plaintiff under order xxxix rules 1 & 2 of the code of civil procedure praying for a temporary injunction. The plaintiff is a leading manufacturer of a large range of pharmaceutical products, toiletries, ayurvedic and other medicinal preparations. The plaintiff is manufacturing and marketing its products under the brand name ‘Dabur’, which is a well-known brand in India and abroad. The plaintiff in the course of its business also manufactures and markets Dabur Chayawanprash, which is being sold not only in India but also in various other countries. It is claimed by the plaintiff that the plaintiff has a market share of 63% of the total market of Chayawanprash through India. Chayawanprash, which is an ayurvedic formation, is primarily a health tonic and has therapeutic qualities for enhancing the immunity against various diseases.

2. The defendant is also engaged in the manufacture of various ayurvedic formulations including Chayawanprash. The defendant is manufacturing the said Chayawanprash under the brand name Himani Sona-Chandi Chayawanprash. The defendant has very recently introduced a new product in the market, namely, Himani Sona-Chandi Am-ritprash and the same is being now advertised on the audio visual media and the T.V commercial of the said product is presently being aired on Zee TV, Aaj Tak, Sony Mex, Zee Cinema etc.

3. It is contended in the plaint by the plaintiff that the plaintiff has very recently come across a T.V commercial of Himani Sona-Chandi Am-ritprash whereby the defendant seeks to disparage the product of the plaintiff, namely, Dabur Chayawanprash. The said T.V commercial stars the popular film star Sunny Deol and the visual depicts the Hero (Sunny Deol) dressed up as an Army outfit walking through the desert with another Army officer. Also shown in the commercial is a camel walking with the two officers. The T.V commercial depicts that on account of excessive heat, the other commander faints and the hero i.e Sunny Deol, who was walking ahead of him comes back running to rescue the fainted officer, puts him on his shoulder and walks to the camp. The commercial shows the hero carrying a bottle of Himani Sona-Chandi Amritprash. Towards the end of the commercial the hero while holding the bottle of Himani Amritprash in his Hand declares “GARMION MEIN CHYAWANPRASH BHOOL JAO, HIMANI SONA-CHANDI Amritprash KHAO. The said sentence translated into English would read as follows:—

“FORGET CHYAWANPRASH IN SUMMERS, EAT Amritprash INSTEAD”.

In the light of the aforesaid background facts, it was contended by the counsel for the plaintiff that the aforesaid advertisement in the commercial shown is a negative campaigning of the product of the plaintiff and that there is an effort on the part of the defendant of insinuating the product of the plaintiff. It was submitted that the clear message that is being sent by airing the said T.V commercial is that consumption of chyawanprash is not advisable during summer season and that Am-ritprash is more effective substitute of chyawanprash for summer season. It was submitted that the aforesaid advertisement/T.V commercial of the product of the defendant is deceptive and dubious and an mala fideattempt to do negative campaign and bringing in insinuating advertisement campaign against the product of the plaintiff.

4. The contention of the counsel for defendant on the other hand was that neither the aforesaid advertisement could be said to be defamatory nor is a measure of negative campaigning. It was submitted that the defendant itself is manufacturing and marketing Chayawanprash, which is to be used in the winter months and not in the summer months and, therefore, only a general statement made by the defendant through the aforesaid commercial/TV advertisement. It was also submitted that ‘chyawanprash’ is a generic word and there is no exclusivity which could be claimed to the said word. It was further submitted that there is neither any malice nor mala fidein theaforesaid advertisement as against the product of the plaintiff and, therefore, no injunction, as sought for by the plaintiff, could be granted in the present suit.

5. In support of their rival contentions, counsel appearing for the parties drew my attention to various decisions of this court and of other High Courts. Special reference was made to the decision of the Calcutta High Court in Reckitt & Colman of India Limited v. M.P Ramchandran & Another, 1999 (19) PTC 741 wherein five principles are laid down as a guiding factor for grant of an injunction of the nature as prayed for herein, which are as under:—

“I A tradesman is entitled to declare his goods to be best in the world even though the declaration is untrue.

II He can also say that my goods are better than his competitors’, even though such statement is untrue.

III. For the purpose of saying that his goods are the best in the world or his goods are better than his competitors’ he can even compare the advantages of his goods over the goods of the others.

IV. He, however, cannot while saying his goods are better than his competitors’, say that his competitors’ goods are bad. If he says so, he really slanders the goods of his competitors. In other words he defames his competitors and their goods, which is not permissible.

V. If there is no defamation, to the goods or to the manufacturer of such goods no action lies, but if there is such defamation, an action lies and if an action lies for recovery of damages for defamation, then the court is also competent to grant an order of injunction restraining repetition of such defamation.

6. The aforesaid five principles were approved by this court in the decision in Reckitt & Colman of India Ltd. v. Kiwi T.T.K Limited, 1996 (16) PTC 393. The decisions which have been relied upon by the counsel for the parties lay down the settled law on the subject, which appears to be that a manufacture is entitled to make a statement that his goods are the best and also make some statements for puffing of his goods but the same would not give a cause of action to other traders or manufacturers of similar goods to institute proceedings as there is no disparagement or defamation to the goods of the manufacturer so doing. However, a manufacturer is not entitled to say that his competitor's goods are bad so as to puff and promote his goods.

7. In the light of the aforesaid legal position, I have to scrutinize and examine the position in the present case to come to a conclusion as to whether or not an injunction should be granted in favour of the plaintiff, as prayed for, for any disparagement or defamation or insinuation to the goods of the plaintiff in the advertisement in question. The aforesaid advertisement appears on the electronic media for a few seconds and it shows Sunny Deol saying that Chayawanprash is not to be taken in the summer months and instead Amritprash is to be taken. The message that is sought to be conveyed by the aforesaid T.V commercial is that consumption of Chayawanprash during the summer months is not advisable and Amritprash is more effective substitute for Chayawanprash in summer season. The plaintiff is manufacturing and marketing and has a market share of 63% of the total market of Chayawanprash throughout India and, therefore, is vitally interested in seeing that Chayawanprash is sold through India during all the seasons. If, on the other hand, the said product is sold and marketed only for a few months of the year and not throughout the year the business of the plaintiff is going to be vitally and prejudicially affected. It is also brought on record that the defendant has a market share of about 12% of the total market in Chayawanprash throughout India whereas in the market of Amritprash, which is a new product being brought out by the defendant, there is no other competitor in the market. Therefore, what is sought to be done by the defendant is to forbid and exclude user of Chayawanprash during the summer months so that it can exclusively capture the Indian market during the summer months, which is sought to be done by sending a message that consumption of Chayawanprash during the summer season serves no purpose and Amritprash is more effective substitute thereof and thereby attempting to induce an unwary consumer into believing that Chayawanprash should not be taken in summer months at all and Amritprash is the substitute for it. The aforesaid effort on the part of the defendant would be definitely a disparagement of the product Chayawanprash and even in generic term the same would adversely affect the product of the plaintiff. The presence of the defendant in the market is only to the extent of 12% of the total market of Chayawanprash in India whereas the plaintiff has about 67% share/presence in the Indian market and if sale of Chayawanprash is weeded out from the market during the summer months, the plaintiffs presence in the market for sale of Chayawanprash is adversely affected. In my considered opinion, even if there be no direct reference to the product of the plaintiff and only a reference is made to the entire class of Chayawanprash in its generic sense, even in those circumstances disparagement is possible. There is insinuation against user of Chayawanprash during the summer months, in the advertisement in question, for Dabur Chayawanprash is also a Chayawanprash as against which disparagement is made. To the same effect is the judgment of the Calcutta High Court in Reckitt & Colman of India Limited v. M.P Ram-chandran & Another(supra)

8. Mr. Chandhiok, appearing for the defendant vehemently submitted that Chayawanprash is a generic word and the plaintiff cannot have a monopoly or sole rights of the use of the said generic word and that the impugned advertisement, at any rate, did not make a slightest reference to the product of the plaintiff and on the contrary it makes reference to its own product Sona Chandi Amritprash and, therefore, it cannot be said that there is any disparagement of the product of the plaintiff.

9. In my considered opinion, when the defendant is propagating in the advertisement that there should be no consumption of Chayawanprash during the summer months, it is also propagating that the plaintiffs Chayawanprash should not also be taken during the summer months as it is not good for health and instead Amritprash, which is the defendant's product, should be taken. Such an advertisement is clearly disparaging to the product of the plaintiff as there is an element of insinuation present in the said advertisement.

10. It was also submitted by Mr. Chandhiok, appearing for the defen dant, that the aforesaid advertisement cannot be said to be disparaging to the plaintiff as it was merely a trade puff and would be so regarded by the purchasing public. The aforesaid contention, however, cannot be accepted due to the fact that if the defendant would have puffed up its own product, namely, Amritprash, there could have been no dispute but the defendant travels much more when it states that no one should take Chayawanprash during the summer months as it is aot good for health during that season.

11. The defendant could not have taken up a plea that Chayawanprash, which is a competitor to Amritprash, is bad during the summer months and since the defendant has resorted to the same, the same is disparaging and, therefore, the case in hand calls for an action in terms of the prayer made in the injunction application. In the light of the aforesaid discussion, I allow the application filed by the plaintiff and issue a temporary injunction restraining the defendant, its agents, distributors, stockists and all others acting on its behalf from telecasting the impugned Himani Sona Chandi Amritprash T.V Commercial, during the pendency of the present suit. The application stands disposed of in terms of the aforesaid order.

CS(OS) 433/2004

12. Let the suit be listed on 14th July, 2004 for orders.