Emami vs. Dabur – Disparagement or Competitive Puffery?

Introduction

This case before the Hon’ble High Court of Calcutta involves a dispute between Emami Limited (Petitioner) and Dabur India Limited (Respondent) in the Fast-Moving Consumer Goods (FMCG) sector. Emami filed a suit alleging disparagement and infringement through a television commercial (TVC) launched by Dabur for “Dabur Cool King Icey Perfume Talc.” Emami sought interim relief to restrain Dabur from airing the advertisement, claiming it directly targeted and disparaged its products.

Facts of the Case

• Emami manufactures talcum powders under ‘Navratna’ and ‘Dermi Cool,’ which have significant market shares. Emami claims that the green and white colour combination, bottle, and cap design are exclusively associated with its products.
• On 28 June 2024, Dabur launched a TVC portraying a talcum powder (resembling Emami’s product) as ineffective in providing cooling relief, while depicting its own product as superior.
• Emami contended that the advertisement referenced its products by using similar colours, bottle designs, and the word “sadharan” (ordinary), misleading consumers into believing its products were inferior.
• On 11 July 2024, the Court issued an ad interim order restraining Dabur from airing the advertisement, particularly the reference to Emami’s products as “sadharan.”

Issues

1. Whether the impugned advertisement disparaged Emami’s products and infringed on its intellectual property rights.
2. Whether the use of the word “sadharan” in the advertisement was defamatory or disparaging.
3. Whether the advertisement generically disparaged the entire class of talcum and prickly heat powders.
4. Whether the Respondent’s offer to modify the advertisement by removing references to Emami’s products was sufficient to address the Petitioner’s concerns.

Petitioner’s Arguments

• The advertisement directly targeted Emami’s products through similar colour schemes, bottle designs, and the use of “sadharan,” implying inferiority.
• The TVC aired over 2000 times on various platforms, damaging Emami’s market reputation.
• The advertisement disparaged not just Emami’s products but the entire class of talcum and prickly heat powders by portraying them as ineffective.

Respondent’s Arguments

• The word “sadharan” was used neutrally, without malice or intent to disparage Emami’s products.
• Terms like “ordinary” are commonly used in marketing, including by Emami itself.
• Dabur offered to modify the advertisement by removing references to Emami’s products, including the green cap and bottle design.
• The use of “ordinary” is protected under Article 19(1) of the Indian Constitution, guaranteeing freedom of speech.

Analysis of the Court

• The Court found that the impugned advertisement directly referenced Emami’s products through similar colour combinations and bottle designs. However, after these references were removed, the term “sadharan” alone was not deemed disparaging or defamatory.
• Rejecting the claim that the ad disparaged all talcum powders, the Court noted that both parties are trade rivals, and the ad did not make a blanket statement against the entire category. It emphasized that trademark law protects consumers from confusion, not the use of descriptive terms like “ordinary” or “sadharan.” The use of such terms, without direct reference to a specific product, was considered permissible puffery.
• Accepting Dabur’s offer to modify the ad by removing references to Emami’s products, the Court stated that such modifications are a common way to resolve disputes.

Judgement of the Court

1. The Court modified the ad interim order of 11 July 2024, restraining Dabur from airing the original advertisement.
2. Dabur was allowed to modify the advertisement by removing references to Emami’s products.
3. The use of “sadharan” in the modified advertisement was not deemed disparaging or defamatory.
4. Emami’s claim of generic disparagement was also rejected.

Conclusion

The Court ruled in favour of Dabur India Limited, allowing it to modify the advertisement to remove references to Emami’s products. The Court held that the use of the word “sadharan” in the modified advertisement was not disparaging and that Emami’s claims of generic disparagement were unfounded. The case highlights the balance between protecting intellectual property rights and allowing freedom of speech in advertising.