Comparative Advertising III | The Last Word
‘GLUCON-D TANGY ORANGE’ v. ‘DABUR GLUCOPLUS-C ORANGE’
The TV commercial identifies ‘orange glucose’ as ‘product category’. But, is it disparaging in nature? Disparagement is an act of belittling someone’s goods or services with a misleading remark. The TV Commercial does not disparage any ‘orange glucose’ drink. Disparagement cannot be a far-fetched inference. It would not be proper for Court to conclude ‘mine is better’ as ‘yours is bad’.
In depicting superiority, a generic comparison ought to be permitted and creativity cannot be stifled. A TV Commercial is not to be analyzed in a hyper critical manner. Reckitt Benckiser (India) Pvt. Ltd. v. Hindustan Unilever Limited, FAO(OS) (COMM) 149/2021 decided on 26.09.2022, is clearly distinguishable. There is no direct comparison with Plaintiff’s product; no image of Plaintiff’s product has been used; only features of Defendant’s product are highlighted. There cannot be a presumption, Plaintiff’s product is being targeted.
The prayer for interim injunction is not liable to be granted.
– Hon’ble Justice Prathiba M. Singh of Hon’ble High Court of Delhi, Zydus Wellness Products Ltd. v. Dabur India Limited, [CS(COMM) 304/2022] decided on 23.12.2022.