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The plaintiff and defendant both sell cooking oil under the brand names SAFFOLA and FORTUNE respectively. SAFFOLA oil contains Refined Rice Bran Oil (RBO) and other oils. FORTUNE oil is claimed to be composed only of RBO.
The plaintiff, Marico Ltd., filed two suits for permanent injunction restraining the defendant from broadcasting, printing and publishing advertisements of its product- FORTUNE that allegedly disparaged the goodwill and reputation of the plaintiff’s product- SAFFOLA. The plaintiff’s primary grievance was with regard to the content of the advertisement that allegedly stated the following – “Fortune RBO oil as being, (a) the “healthiest oil in the world”; (b) healthier than the other cooking oils shown in the advertisements (in the TV commercial, though the trademark of the plaintiff was not used, comparison was made with the container of the plaintiff’s product. In the print ad, the plaintiff’s product was named); (c) 100% RBO being 100% healthy; and, (d) good not only for the heart, but also good for cholesterol immunity, skin and hormones.” These statements, it was contended, were unfair, disparaging and caused irreparable harm and damage to the reputation of the plaintiff. The plaintiff also contended that these statements were misleading as they were not backed by adequate research or scientific study. Therefore, the case for the plaintiff was that the advertisement was comparative in nature and puffs up the product of the defendant without any basis.
The defendant (Adani Wilmar Ltd.) , among other things, contended that the advertisement only exhorted the virtues of the defendant’s product- FORTUNE without denigrating the plaintiff’s product. Also, they claimed that there was no wrong representation of the claim that RBO is the healthiest oil and that a disclaimer was provided for the same. They also contended that the container of the plaintiff’s product was not distinctive of the plaintiff and in this regard photographs of other products with similar containers were shown.
The Hon’ble Single Judge of the Delhi High Court relied primarily on two decisions with regard to comparative advertising – De Beers Abrasive v. International General Electric Co. 1975 (2) All ER and the Division Bench (Delhi High Court) decision of Dabur-Colortek, to hold that the defendant’s ad was not disparaging (for order see here). The court first addressed the issue of whether the advertisements were disparaging and then went on to deal with the issue of whether the claims made by the defendant were false.
Whether the advertisements were disparaging –
The court first expounded the law in relation to comparative advertising. In the case of De Beers Abrasive, it was held – “the law is that any trader is entitled to puff his own goods even though such puff as a matter of pure logic involves the denigration of his rival’s goods. Notices reading “the best tailor in the world”, “the best tailor in this town” and the “best tailor in this street” do not commit an actionable offence. Where however the situation is not that the trader is puffing his own goods but turns to denigrate the goods of his rival then the situation is not so clear-cut .The statement “my goods are better than X’s” is only a more dramatic presentation of what is implicit in the statement “my goods are the best in the world” and would not be actionable. However, the statement “my goods are better than X’s because X’s are absolute rubbish” would be actionable.”
The court highlighted that the Division Bench in Dabur-Colortek (following the decision in Pepsi Co Ltd.) echoed a similar view i.e. comparative advertising is permissible as long as the competitor’s product is not derogated, discredited, disgraced, though while comparing some amount of “showing down” is implicit. Further, in Dabur-Colortek the court had relied on a test to ascertain whether there has been any disparagement – “(1) The intent of the advertisement [..] (2) The overall effect of the advertisement [..] (3) The manner of advertising [..].“
Using these principles, the court found the intent, story line and message of the impugned advertisements were not disparaging and only compared the advantages of the defendant’s goods over the goods of others. Moreover, no part of the advertisements denigrated the plaintiff’s product.
The defendant had based its claims on the fact that 100% RBO had a higher quantity of Oryzanol. Oryzanol is a micro-nutrient with proven cholesterol lowering effect (this was stated by the defendant in its print media advertisements). The court observed that the plaintiff’s own cooking oil also has RBO as a significant component and the plaintiff in its advertisements and website has been claiming similar if not the same benefits of Oryzanol. The court also noted that the plaintiff was not challenging the claimed benefits of Oryzanol or the content of Oryzanol in the plaintiff or defendant’s product. Given these facts, the court came to the conclusion that the defendant’s ad in no way disparages the plaintiff’s product. With regard to the ad on television, the plaintiff’s product was not named and the containers shown were not distinctive of the plaintiff’s product. As for the print ad, even though the plaintiff’s product had been named, the court opines that the plaintiff’s product had been named only to compare its Oryzanol content and price with the defendant’s product.
Whether the claims made by the defendant were false and untrue –
The plaintiff had contended that the cholesterol lowering capability of Oryzanol is best in a blend of Oryzanol and Safflower Oil in the ratio of 70:30 rather than in 100% RBO, as the defendant’s had claimed. The court relied on Dabur-Colortek and by looking in to the intent, message and story line of the advertisement, came to the conclusion that the ad was not about the comparative cholesterol lowering ability of Oryzanol but was about showing that the defendant’s product was sufficient to meet the daily requirements of the human body. Also, the court held that they cannot adopt a hyper-technical view and penalize the defendant for not disclosing each and every detail regarding the cholesterol lowering abilities of Oryzanol so long as the intent, story line and message sought to be conveyed by the advertisement is not entirely untrue.
On these grounds, interim injunction was denied.
