Calcutta HC Injuncts Chyawanprash Ads Of Baidyanath Ayurved For Disparaging Dabur Trademark
The Calcutta High Court Injuncted Chyawanprash Ads of Baidyanath Ayurved For Disparaging Dabur Trademark.
Background
The plaintiff/petitioner has filed the present suit against an advertising campaign containing five impugned advertisements issued by the defendant/respondent one after the other during October and November 2021 in relation to its product “Baidhyanath Chyawanprash Special”. In the advertisement the respondent states that complete Chyawanprash is the one, which is formulated as per correct formulation. Thereafter, it further communicates that Baidyanath Chyawanprash is a complete Chywanprash which is made with traditional recipes. While other Chyawanprash uses ‘mixture of oil and ghee in their preparation’, Baidyanath Chywanprash uses only ‘100% Pure Desi Ghee’.
Arguments
Advocate Sudipta Sarkar, appearing on behalf of the petitioner, contended that it is admitted by the defendant/respondents that the impugned advertisements are comparative in nature, thus, such untruthful comparisons are actionable in nature. The advertisement mentions ‘ordinary’ Chyawanprash containing ‘42 ingredients’ but the respondent admits that there is no ‘Chyawanprash’ in the market that contains 42 ingredients. Hence, the claim is untruthful, false and actionable.
Advocate Manish Biala, appearing for the Defendant/Respondent, contended that the defendant’s advertisement and right to commercial speech is a part of freedom of speech and expression guaranteed under Article 19 (1) (a) of the Constitution. It is settled law that any restraint or curtailment of advertisements would affect the fundamental right under Article 19 (1) (a). The purpose of advertising is dissemination of information regarding the product advertised and the public at large is benefitted by the information disseminated.
Decision
The single judge bench of Justice Shekhar B. Saraf stated that misleading advertising, as the term implies, is one that deceives, manipulates, or is likely to deceive or manipulate the consumer. These commercials have the potential to influence consumer’s purchase preference in the market and it also harms its rivals, hence, they must be used with caution. There should be a balance between the right of commercial speech and the interest of the public and competitors. In the present case, the video advertisement is, to a large extent, misleading.
The court held the video advertisement permanently injuncted and keeping in mind the various precedents cited by both the parties, and on suggestions that had fallen from the Bar, allowed a modified version of the video advertisement on the conditions; The bottle that is shown in the 6th second of the advertisement shall only have the printed words “CHYAWANPRASH” and no other word; The reference to the words “42 nahi” in the 29th to 31st second of advertisement shall also be removed.
The court said that in the event the above changes are made, the advertisement shall be permitted to be shown on television, social media and other platforms.
Case title: Dabur India Limited v/s Shree Baidyanath Ayurved Bhawan Pvt. Ltd.
Citation: I.A. G.A. NO. 1 of 2021 in C.S. NO. 232 of 2021
