GUJARAT COOPERATIVE MILK MARKETING FEDERATION LTD & ANR.  v. AKSHAR FOODS AND BEVERAGES & ANR.

brand. The Plaintiff No.2 is a District Cooperative Milk Producers' Union federated of the Plaintiff No.1.

4. The mark 'AMUL' was coined and adopted way back in the year 1948, and since then, has become one of India's most well-known marks in the field of milk, milk products and other cognate and allied products. The Plaintiff No.2 has applied for and obtained registrations for the mark 'AMUL' and its variants in several classes, including Classes 5, 29, 30, 31, 32, and 35 in India. The oldest registrations of the trade mark 'AMUL' in Class 29 under Application No.185698 dated 1st July, 1958 which was published under the Trademark Journal No.260, and in Class 30 under Application No.286348 dated 1st March, 1973 which was published in the Trademark Journal No.599. Owing to extensive promotions and high standard quality of the products of the Plaintiffs, the mark 'AMUL' has become a well-known mark and a household name in India and abroad. As per the Plaint, the global annual turnover of 'AMUL' for the year 2019-20 is 38,542 crores and the marketing expenses of 'AMUL' for the year 2019-20 is 862.96 crores.

5. It is submitted that the Plaintiff No.2 is the registered proprietor of the mark 'AMUL', which has licensed the right to use the 'AMUL' trademarks in respect of milk, milk products and other cognate and allied products, in favour of Plaintiff No.1, vide Trademark License Agreement dated 15th January, 2001.

6. The Defendant No.1 - Akshar Foods and Beverages is a milk manufacturer involved in the production and sale of 'Gir Cow Milk'/'A2 Milk'. The Defendant No.2 is the Domain Name Registrar in respect of the Defendant No.1's website being 'www.aksharmilk.com'. The grievance of

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the Plaintiffs is that, on 29th June, 2021, Defendant No.1, through its website, has published an article titled as 'Is Amul Milk Pure?: Must Know Health-Related' which is stated to be highly libellous and disparaging, and wherein various allegations against the Plaintiffs and its products have been levelled. According to the Plaintiffs, the tone and tenor of the said article was meant to completely tarnish the reputation of the 'AMUL' brand and make baseless and unverified allegations against the Plaintiffs.

7. Vide order dated 8^thJuly, 2021, the Court had granted an ex parte ad- interim injunction against the Defendants, in the following terms:

"6. Prima facie, in my view, a case for grant of ad interim injunction is made out, in order to salvage and avoid further damage to the reputation of the plaintiffs.

7. As such, the defendants are directed to ensure removal, from the website www.aksharmilk.com. of Defendant No. 1, the impugned defamatory article "Is Amul Milk Pure?: Must-know Health Related Facts", bearing URL:

https://aksharmilk.com/is-amul-milk-pure/, as well as from any other social media or platform, on which the article may have been uploaded. Defendant No. 1 is also restrained from uploading, on the internet or publishing in any other manner virtual or physical, any such article disparaging the plaintiffs and their products, till the next date of hearing. "

8. Thereafter, the matter continued to be listed before the Joint Registrar. Vide order dated 29th November, 2021, the interim injunction already granted was made absolute. Vide order dated 31st May, 2022, the right of the Defendants to file the written statement has been closed.

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9. On behalf of the Plaintiffs, it is submitted that the website of the Defendant No.1, which itself is a milk producer, would show that the campaign was meant to target, tarnish and dilute the 'AMUL' brand. The allegations made in the said article were that the Plaintiffs, as also elaborated upon in the Plaint, including the following:

i. It was alleged that the Plaintiffs receive milk from the farmers of the surrounding region in Gujarat, who use those chemicals or synthetics in the milk, so as to earn more profits.

ii. It was further alleged that the pasteurisation done by the Plaintiff removes 90% of enzymes, nutrition, proteins, and vitamins from the milk.

iii. It has also been alleged that, due to the use of the tetra pack in the Plaintiffs' products, 95% of the nutrients are dead or lost.

10. The screenshots of the impugned article have also been placed on record.

11. Mr. Abhishek Singh, ld. Counsel submits that, since the passing of the order dated 8th July, 2021 granting an interim injunction, the Defendants have taken down the impugned article which had been published on their website. Hence, he prays that a permanent and mandatory injunction be granted in the present suit, along with damages and costs.

12. This Court has heard ld. Counsel for the Plaintiffs and has also perused the record. A perusal of the impugned article makes it clear that various derogatory terminology has been used in the said article in respect of the Plaintiffs' brand 'AMUL'. At certain places, words such as "drinking rubbish", "dead or lost nutrients", "synthetic milk", etc. have been used. The said article further claims that Plaintiffs' 'AMUL' milk products,

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particularly the tetra pack product, are adulterated and devoid of all nutrients. The foregoing allegations are extremely derogatory and defamatory, against the Plaintiffs and its mark 'AMUL'. The article itself is clearly targeted at 'AMUL' and intends to cause panic in the members of the public, who consume 'AMUL' branded products.

13. In a similar fact situation, in Mother Dairy Foods and Processing Ltd. v. Zee Telefilms Ltd. [AIR 2005 Delhi 195], the Court was concerned with an application seeking interim injunction restraining the Defendant from telecasting, publishing and showing on its website, its programme titled "Inside Story- Safed Doodh Ka Kala Karobar". The Plaintiff, which is a public sector enterprise engaged in the supply of milk and milk products, also aggrieved by virtue of the said telecast investigating into how synthetic milk is being manufactured and sought damages for defamation. The Court, while rejecting the application seeking interim injunction, made the following observations which are relevant to the present case:

"35. Let us consider the above aspect of adherence to journalistic norms, as noted above, qua the programme telecast.

The defendant's efforts in unearthing and bringing to the notice of public the menace of manufacturing of synthetic milk and its possible supply to leading manufacturers such as plaintiff was no doubt a laudable measure for public good. However, prima facie there does not appear to have been any serious effort of actually estimating the extent of synthetic milk produced. The defendants projected in the programme as if poison of synthetic milk was being supplied to crores of persons. During the hearing of the case, defendants were asked to indicate whether any data was collected or research done in support of above statement. Reference was made by defendants to clippings of news reports regarding

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making of synthetic milk and raids carried out. There was one report which mentioned the value of equipment involved in the illegal operation as being Rs. 10 to 12 lakhs. There was no mention of quantity of synthetic milk produced. No serious efforts or research appear to have been done to estimate the quantity of synthetic milk manufactured clandestinely in these operations. Undoubtedly, it is the author's prerogative to decide the contents of the programme. It has complete freedom regarding its composition or expression of views and opinions. It has the right to criticize in a scathing manner, lack of quality control tests or procedure and or ineffective processes and to bring out need for maintenance of standards to ensure quality. However, any exaggeration or sweeping comment on subjects concerning health and quality of commodities of human consumption can cause immense harm to the public and psyche of masses. Media has the onerous responsibility to ensure that facts are verified and the matter is thoroughly investigated and researched and salient and critical information is collected. The extent of operations and quality of synthetic milk being allegedly produced, was an essential element for programme's objectivity. This appeared to be missing. A sweeping comment that no part of country is free from adulterated and synthetic milk and crores of people will keep on consuming this poison or "think before you take the deadly sip" can effect the psyche of people. This can have wide ramifications with doubts being raised on the very availability of pure quality milk and food in this nation of 100 crores and above without actually fully knowing or fathoming the extent of malaise. It would, Therefore, appear that media as part of its responsibility and accountability to public and its readers should eschew sensationalism, exaggeration and sweeping comments, especially in matters of food and public health."

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14. In Tata Chemicals Ltd. v. Puro Wellness Pvt. Ltd. [CS (OS) 403/2018 decided on 15^th March, 2019], this Court was concerned with disparaging and slanderous advertising material, including pamphlets/booklets, television commercials, articles/interviews and videos, used by the Defendant which claimed that the Plaintiff's product- 'TATA' Salt is harmful for health and not fit for human consumption. Relying upon the settled position of law as reiterated in several decisions, this Court observed as under:

"47. A perusal of the impugned material, as a whole, shows that the theme and message is the same in all of them. The purpose is to clearly convince customers that white salt is dangerous for health. The said message is being conveyed by making references and allusions to TATA Salt. In the video, the TATA Salt packaging is clearly visible. In the pamphlets and in the booklet, the TATA Salt packaging is blurred, but there is no doubt that the packaging is clearly discernible. TATA Salt is a product which has been sold for several decades and this is a fact of which judicial notice can be taken. It has the requisite approvals and any product which does not comply with the FSSAI statute and regulations, cannot be sold. A comparison of white salt with poison is clearly meant to create panic amongst the consuming public and if allowed to be carried on unhindered, it can have a deleterious impact not just on the Plaintiff and its product, but also on customers, who could be forced to give up on the use of white salt, which is a basic ingredient in food cooked in almost every household in the country.

The portrayal that white salt is bleached, manufactured in a chemical factory and comparable

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with paint or bleached clothes is not merely puffing but an exaggerated message which could lead to shaking up of customers' confidence.

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63. Advertising has to be viewed from the point of view of a lay customer. The protagonist in the television commercial is a well-known actor who is known to the viewing public. The impugned advertising material has been circulated widely. A common man cannot discern the difference between the salt being manufactured in a chemical factory and soda ash being a by-product in the process of manufacture of salt. Such nuanced differences cannot be communicated to the public and the chances of consumers being misled is very high. As it is oft-said "A picture is worth a thousand words". The TATA brand has earned an iconic status. TATA Salt was introduced by the Plaintiff and was recognised by the Government as one of the products meant to eliminate iodine deficiency. It was promoted as "Desh ka Namak Tata Namak" and has a large customer base. The swathe of population which has consumed and continues to consume a product such as TATA salt cannot be led to believe that they were consuming poison or a dangerous ingredient, without there being irrebuttable proof for the same. Upholding the Defendant's right to make such statements would mean that the regulatory authorities have turned a blind eye to poison being sold, which is also clearly unacceptable. The truth, if any, of the Defendant's statements has to be established in trial. Until then, the Defendant cannot be permitted to make such denigratory and disparaging remarks."

15. Similarly, in Annhueser Busch LLC v. Rishav Sharma & Ors. [CS(COMM) 288/2020 decided on 30^th July, 2020], the Plaintiff sought an

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injunction against the proprietors of a website 'www.thefauxy.com'. It was the case of the Plaintiff that the Defendants had tarnished its reputation associated with its 'Budweiser' beer, by maliciously publishing defamatory/disparaging posts and videos to perpetrating the fictitious report/fake news of the Plaintiff's employees urinating in the 'Budweiser' beer sold to its customers. In this context, the ld. Single Judge granted an interim injunction in the following terms:

"10. Having heard the learned counsel for the parties and noting the prayer, as made by the plaintiff in the present application and also having watched the video, it is clear that the plaintiff has made out a prima-facie case and the balance of convenience is also in favour of the plaintiff and accordingly, it is directed that the defendant Nos. 1, 2 and 3, their partners, agents, assigns, officers, servants, affiliated entities, as the case may be, and all others acting for and on their behalf are restrained from reproducing, broadcasting, communicating to the public, screening, publishing and distributing the impugned video or any other video on any media or platform and promoting the impugned video on various social media amounting to infringement of plaintiff's registered mark 'Budweiser' and also amounting to commercial disparagement of the plaintiff's products including but not limited to the video/post published on the following four URLs till the next date of hearing."

16. In Hamdard National Foundation & Ors. v. Hussain Dalal & Ors. [CS (OS) No.1225/2013 decided on 7^th June, 2013], the Plaintiffs, who are the proprietors of the well-known mark 'Roohafza', filed a suit against the Defendants for commercial disparagement and tarnishment of goodwill and damages. It was the grievance of the Plaintiffs, that the Defendants had

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released a movie, which had already hit the cinema halls, containing certain dialogues which showed the Plaintiffs' 'Roohafza' product in a bad light, and the same was likely to tarnish the Plaintiffs' reputation. While permitting the Defendants to release the home version of the impugned movie after omitting the objectionable contents therein, the ld. Single Judge observed as under:

"21. It is equally true that every citizen has a fundamental right to speech and expression as enshrined in the Indian constitution in the form Article 19(1)(a), however the said fundamental right to speech and expression is not unbridled or uncontrolled as the same is subject to the provisions of Article 19(2) of the Constitution.

22. A conjoint reading of the Article 19(1)(a) and Article 19(2) of the Act, would make it clear that the state is within its power to make any law in so far as it imposes the reasonable restrictions on the exercise of the right conferred by the said sub-clause in the in relation to defamation etc. the law preventing the infringement of trade mark by way of spoken words is a commercial law preventing unfair or untrue commercial speech which may cause injury to the proprietor which is included within the ambit of the infringement in order to prevent disparagement. The said law prevent disparagement is one of the facet of the tort of the defamation and is thus an excepted matter under Article 19(2) and the state is within its power to make such law.

23. In the case of Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. & Ors., MANU/SC/0745/1995 :

(1995) 5 SCC 139 the Supreme Court speaking through Hon'ble Kuldeep Singh, J. (as his Lordship then was) also approved that the commercial speech which is unfair, untruthful and deceptive can be prevented under Article 19(2) and the same cannot be

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protected under Article 19(1) although the Supreme Court then proceeded to evaluate the permissible extent of the commercial speech in the later part of the judgment. In the words of Supreme Court, it was observed thus:

"our Constitution itself lays down in Article 19(2) the restrictions which can be imposed on the fundamental right guaranteed under Article 19(1)(a) of the Constitution. The

"Commercial speech" which is deceptive, unfair, misleading and untruthful would be hit by Article 19(2) of the Constitution and can be regulated/prohibited by the State." (Emphasis Supplied)

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25. The crucial question is where to draw a line between the 'right to tell' and 'no right to tell' because blanket rights and powers sometime become dangerous if checks and balances are not checked. The same must be resulted in some type of cases where the fundamental rights of other parties who has otherwise clean and good reputation of the person or institution against whom something adverse is said without any fault by a public figure whose versions are taken as truth.

26. As discussed earlier, in the present case, this Court is totally agreed with the observations of the Supreme Court. The said offending dialogues in the film are uncalled for, the same are in poor taste and these could have been avoided. The same are likely to tarnish the reputation of the plaintiffs."

17. Similarly, in Marico Limited v. Abhijeet Bhansali [Notice of Motion No.1094 of 2019 in COMIP No.596 of 2019 decided on 15^th January, 2020], the Plaintiff sought an injunction against the Defendant, who was a 'Youtuber'/blogger on the popular website 'www.youtube.com', restraining

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him from publishing the impugned video or communicating the same to the public, as also, for disparaging or denigrating the Plaintiff's 'Parachute Coconut Oil' product. It was the case of the Plaintiff that the Defendant had published a video on its 'YouTube' channel, titled "Is Parachute Coconut Oil 100% Pure?" wherein he had reviewed the Plaintiff's product and made false statements in respect thereof. Under these facts and circumstances, the ld. Single Judge of the Bombay High Court held that the Plaintiff has made out a prima facie case for the grant of interim reliefs, and observed as under:

"17.1 …In order to make out a case for disparagement/slander of goods the Plaintiff must show the following:

a) That the Defendant's statements are false;

b) That the said statements were made and published maliciously/recklessly,

c) That the said statements caused special damages to the Plaintiff.

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25. The Defendant cannot under the garb of educating/bring the true facts to public, provide misleading information to disparage the Plaintiff's product. Any campaign to educate the members of the public by placing before them the true and correct facts may be welcomed. However, under the garb of educating and/or bringing the correct facts before the members of the public, no one should put misleading information which disparages/discredits or belittles someone else's product or influences the consumer not to buy the said product. Additionally, the unauthorized use of the Plaintiff's registered trademarks by the Defendant in a manner which is detrimental to its distinctive character or reputation cannot ever be in accordance with the honest practices in industrial or commercial matters."

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18. In an appeal challenging the above judgment in Marico Limited (supra), while permitting the impugned video to be published with certain modifications, the ld. Division Bench of the Bombay High Court in Abhijeet Bhansali v. Marico Limited [Interim Application No. 1 of 2020 in Commercial Appeal (L) No. 31 of 2020 in Notice of Motion No. 1094 of 2019 in COMIP No. 596 of 2019, decided on 14^th February, 2020], laid down the following principles in respect of disparaging and defamatory statements leading to tarnishment of a brand:

25. Where an objective analysis of words and expressions used is capable of being debated upon, the issue pertaining to defamation would have to charter a route in the context of freedom of speech-vs.- reputation.

26. Where a person asserts a matter of fact, he cannot be restrained from expressing himself. Law does not so permit. Because if he fails to make good the fact asserted, damages are awarded.

27. But with respect to opinions and subjective issues, which cannot demonstrably be shown to reveal the facts on which opinions are based, then different yardstick applies. If the statement is per se defamatory, an injunction must follow.

28. Labelling a statement as an opinion does not automatically make it an opinion or make it safe from the possibility of it being defamatory.

29. If a reader or listener could reasonably understand that the communication is stating a fact which can be verified, such communication is not treated as stating an opinion.

30. An expression of opinion may be simple or mixed. A simple expression of opinion is made after the facts on which the opinion is based are presented. A mixed expression of opinion is not accompanied by the facts. They may be employed by the speaker or assumed by

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those receiving the communication.

31. If an expression of an opinion is based on disclosed non-defamatory facts, an action is not supported, no matter how unreasonable or derogatory the opinion is.

32. However, if the expression of opinion is based on undisclosed or implied facts, support of an action depends on the understanding of the statement. If the recipient reasonably believes the truth of an undisclosed or implied defamatory fact about the subject of the statement, the speaker is liable for making defamatory statement."

19. In the recent decision in T.V. Today Network Limited v. News Laundry Media Private Limited & Ors. [CS(COMM) 551/2021 decided on 29^th July, 2022], the case of the Plaintiff, which operates the prominent television channels, namely 'Aaj Tak', 'India Today Television' and 'Good News TV', was that the Defendants have ridiculed and defamed the Plaintiff Company by publishing various videos and articles containing false, malicious, defamatory and derogatory information, through their digital news platform being 'Newslaundry'. On the issue of commercial disparagement, the ld. Single Judge of this Court observed as under:

"73. A question may arise as to the relevance of these decisions relating to advertisement to the issue at hand. For one, they recognize the right of an organization to proclaim before the public their superiority over rivals. What is however prohibited is to call the rival's products or services as poor or make untrue statements or mis-statements about the rival's products or services. So also in the field of copyright and broadcast rights, where a plea is taken of fair dealing, for if the rubicon is crossed, the comment would make the defendant liable for defamation, harm to reputation and disparagement. In other

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words, the programmes of the defendants No.1 to 9 must not be showing the plaintiff's programmes in poor light, asking viewers to stop watching the plaintiff's channels while claiming their own to be the best. This, of course, will again be a question of fact as to whether commercial disparagement has occurred or not. The "defence of truth, it may be noted, would be available as an absolute defence to the plea of defamation/disparagement. This defence too is to be established during trial."

20. From the above decisions it is clear that disparaging remarks about any brand or products cannot be made without properly verifying the underlying facts. Sensationalism has to be avoided especially in matters of goods relating to mass consumption. Responsibility has to be taken before publication of articles that denigrate a product or a brand. While defamation may apply qua an individual, commercial disparagement would be caused to a brand or a business against whom unfounded allegations are made.

21. In the present case, the well-known nature of the Plaintiffs' brand 'AMUL' is hardly disputed. There are a large variety milk and milk products sold under the Plaintiffs' 'AMUL' brand. The products are consumed by young and old. If the Defendant No.1 which is itself a milk producer had any information as to the quality of the 'AMUL' products, it could have availed of proper remedies or approached the regulatory authorities. The putting up of a slanderous article on its own website without adducing any proof or evidence, if permitted, would give a free hand to defamation and slander. Thus, if any allegations had to be made against the Plaintiffs, the Defendant No.1 ought to have presented them in the form of facts before the Court. The allegations made in the impugned article which was published on

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the website of Defendant No.1, seems to be clearly baseless and without any confirmation or proof of the facts which are projected in the said article. While the Defendant No.1 could have raised a defence and established the contents of the impugned article, it has chosen to stay away from the Court, and has, in fact, complied with the order for removal of the article. Publication of unverified allegations purely with an intent to tarnish and dilute the reputation of a known brand or mark cannot be permitted or tolerated. In this case, the Defendant No.1 is a milk producer and is aware of the consequences of such allegations being made without any evidence. The same is clearly a thought-out and deliberate act of the Defendant No.1 with a view to vilify the Plaintiffs and the 'AMUL' brand.

22. Following the rationale of the judgment of the ld. Single Judge of this Court in Disney Enterprises Inc. & Anr. v. Balraj Muttneja &Ors. [CS (OS) 3466/2012 decided on 20th February, 2014], no ex parte evidence would be required in this matter. The same has been reiterated by the Court in S. Oliver Bernd Freier GMBH & CO. KG v. Jaikara Apparels and Ors. [210 (2014) DLT 381], as also, in United Coffee House v. Raghav Kalra and Ors. [2013 (55) PTC 414 (Del)]. The relevant observations from the judgment in Disney Enterprises Inc. (supra), are as under:

"3. Though the defendants entered appearance through their counsel on 01.02.2013 but remained unrepresented thereafter and failed to file a written statement as well. The defendants were thus directed to be proceeded ex-parte vide order dated 04.10.2013and the plaintiffs permitted to file affidavits by way of exparte evidence. 4. The plaintiffs, despite having been granted sufficient time and several opportunities, have failed to get their affidavits for leading ex-parte evidence on

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record. However, it is not deemed expedient to further await the same and allow this matter to languish, for the reason that I have in Indian Performing Rights Society Ltd. Vs. Gauhati Town Club MANU/DE/0582/2013 held that where the defendant is ex parte and the material before the Court is sufficient to allow the claim of the plaintiff, the time of the Court should not be wasted in directing ex parte evidence to be recorded and which mostly is nothing buta repetition of the contents of the plaint."

23. A perusal of the impugned article shows that it seems to have made minute comparisons between 'A1 Milk' and 'A2 Milk'. However, no test reports have been placed on record to corroborate and prove the allegations levelled by the Defendant No.1 falsely claiming that 'AMUL' milk is harmful to the consumers.

24. In these facts and circumstances coupled with the lack of any defence having been placed before the Court by the Defendants, the present suit is liable to be decreed in terms of the reliefs of permanent and mandatory injunction, as sought in paragraphs (i) and (ii) of the prayer clause as set out in the Plaint. Accordingly, the Defendants and all others acting for and on its behalf are permanently restrained from uploading any

articles/videos/photographs/posts identical or similar to the impugned defamatory article or any portions thereof, titled as 'Is Amul Milk Pure?:

Must-Know Health Related Facts' in future, on any social media platform, websites or anywhere on the internet or anywhere in print or electronic media.

25. Considering the fact that the Defendants have chosen to stay away from the Court despite being aware of the same, as also, the fact that the

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entire article is completely based on unverified facts, the Defendant No.1 is directed to pay litigation costs of Rs.3 lakhs to the Plaintiffs.

26. The Defendant No.1 shall pay the said costs to the Plaintiffs within three months, failing which, the Plaintiffs shall be permitted to seek execution of the decree or avail of its remedies, in accordance with law.

27. Decree sheet be drawn accordingly. All pending applications are also disposed of.

PRATHIBA M. SINGH

JUDGE

AUGUST 4, 2022/dk/ad (corrected and released on 16^th August, 2022)

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