Advertiser must have freedom to make ads with generic comparison, says Delhi HC

An advertiser should get the freedom to make ads with generic comparisons, through which it can highlight its own product features. An objection against it cannot be raised unless the representation being made is absolutely false or misleading, ruled the Delhi High Court.

Delhi High Court’s Justice Prathiba M Singh said that mere allusions, in the absence of a decipherable comparison, would not be sufficient to make out a case of generic disparagement.

"In the opinion of the Court, cases, where there is a direct comparison and denigration of the competitor's product, would fall in a completely different category as against those cases where there are allusions or indirect references. Allegations of disparagement in cases where comparison is alleged with an unrelated category as a whole is also objectionable. However, in the case of generic comparison with a product of related/same category without any direct reference to any competitor, the freedom for advertisers would be greater than those cases falling in other categories," the court observed.

The court observed that it cannot be said that every generic comparison would be referencing to the market leader which would be "curtailing freedom of advertising to a considerable extent."

The court further said that a generic comparison which highlights the strength of the product without stating anything negative about the competitors should be permissible, “failing which the strength of the advertisement could itself be considerably diluted”. It also stated that the purpose of making an ad itself is for marketing the attributes of a product, which could be unilateral or relative in a generic fashion.

Delhi HC made the observations while refusing to pass an order of interim injunction against Dabur India in a suit filed by Zydus Wellness Products seeking to restrain two ads released by the former for the promotion of its product “Dabur Glucoplus-C Orange”.

It was the case of Zydus Wellness that one of its most popular variants of the "Glucon-D" range of products is "Glucon-D Tangy Orange" which has been marketed and sold by its predecessor for decades.

The grievance of the plaintiff was that the impugned TV commercials aired by Dabur India denigrated and disparaged all orange glucose powder drinks and especially its product "Glucon-D Tangy Orange". As per the plaintiff, the impugned TVC gave the impression that all the orange glucose powder drinks were entirely inefficacious in providing energy and that only Dabur's product was capable of providing energy.

Refusing interim relief to Zydus, Justice Singh observed that commercials are viewed for short fleeting periods and the impact has to be seen as a whole in the short time period in which it is viewed.

"Thus, there has to be either express or implied reference to a competitor or its goods or a product category. A mere fleeting allusion to some unidentifiable product or product category cannot constitute `comparative advertising'," the court observed.

It was also observed that it is usual for advertisers and companies marketing and selling products to portray their products as being superior and that in the process of depicting superiority, a generic comparison ought to be permitted and creativity cannot be stifled.

"The message being portrayed in the commercial would have to be seen and if the message is not derogatory, no objection can be raised," the court said.

The court also observed that the impugned TVC merely highlights the qualities of Dabur's product and does not disparage any orange glucose powder drink, adding that disparagement cannot be a far-fetched inference.

"It would not be proper for the Court to flip the coin to conclude - 'mine is better' as 'yours is bad'. The comparison made in the impugned TVC might be unfavourable to Plaintiff, but it cannot be held to be disparaging. The intent and the overall effect of the advertisement in question seems to be to promote the Defendant's product and not to denigrate the Plaintiff's or any other manufacturer's product," the court said.

The court said that the impugned advertisement is truthful and that there is no falsity involved in the same. Justice Singh also said that there is no serious misrepresentation of fact on Dabur's part in the impugned TVC.

"In the absence of any disparaging uttering, still or image in the impugned TVC, this Court is unable to arrive at a conclusion merely on the basis of the market share of the Plaintiff that the Plaintiff's product is being disparaged or there is any generic disparagement. The impugned TVC when viewed from the perspective of an ordinary viewer does not give the impression of denigration or disparagement but one where the Defendant's product is being self-promoted," the court observed.

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