The Hair Oil Advertisement Tussle Between Marico Ltd. And Dabur India Ltd.

Introduction

Conflicts between companies regarding advertisements frequently end in legal challenges to protect reputations and market shares. A recent case, Marico Ltd. v. Dabur India Ltd.[1] has piqued the interest of industry experts. It involves a dispute between two significant players in the hair care sector. The disagreement arose after disparagement claims were made in response to a print advertisement and a connected WhatsApp message. We go into the intricacies of the case in this piece, scrutinizing the court’s conclusion and providing light on the plaintiff’s and defendant’s claims.

Analyzing the Judgment

The Plaintiff’s Contentions

• The plaintiff maintains that the challenged advertisements, a print advertisement, and a WhatsApp message, disparage their product, “Nihar Naturals Shanti Badam Amla Hair Oil.” These ads target the plaintiff’s product negatively, insinuating that consumers who choose inexpensive Amla Hair Oil will suffer harm.
• The defendant’s false claims and deceptive assertions, such as their product being the only real Amla Hair Oil, contribute to defamation and a violation of advertising rules. The plaintiff offers evidence of the defendant’s role in generating and spreading the WhatsApp advertisement, including images, as well as the defendant’s failure to refute the involvement of their workers.
• Furthermore, the plaintiff highlights the importance of considering the whole impression of the advertisements, citing examples such as Gujarat Co-operative Milk Marketing Federation Limited v. Hindustan Unilever Limited[2], among others. They challenge the defendant’s false statements and misrepresentations, particularly their conflicting denial of making and disseminating the WhatsApp advertisement.
• Using Gujarat Bottling Co. Ltd. v. Coca-Cola Co.[3] as a precedent, the plaintiff claims that seeking to dismiss the preliminary injunction necessitates appearing with clean hands. While admitting mistakes in referring to previous ASCI procedures and Bombay High Court orders, the plaintiff highlights the importance of evaluating each advertising independently, as former decisions may not apply directly in this case.

The Defendant’s Contentions

• The defendant claims that the challenged print advertisement neither disparages nor breaches the plaintiff’s trademark rights. They believe that the advertisement’s assertions are well-supported and factual and that it promotes the defendant’s product in a fair and non-discriminatory manner.
• In response to the plaintiff’s allegations, the defendant recalls previous proceedings before the High Court of Bombay and the Advertising Standards Council of India (ASCI) in which identical commercials were challenged. The defendant claims that the High Court of Bombay found no disparagement in the commercial in a previous case and that the ASCI rejected challenges to the tagline used in the defendant’s advertisement. They claim that the plaintiff tried to sway the current case by suppressing and misrepresenting these facts. Furthermore, the defendant questions the plaintiff’s haste and reason for selecting a jurisdiction, accusing them of forum shopping.
• The defendant cites cases such as Puro Wellness Pvt. Ltd. v. Tata Chemicals Ltd.[4] to buttress their position. They claim that the print advertisement is neither insulting nor misleading, and the defendant, who denies creating the WhatsApp message, is willing to seek an injunction to prevent it from being used.

The Court’s Decision

• The plaintiff had already challenged the defendant’s advertisement in a separate action before the Bombay High Court. During the lawsuit, the defendant proposed changing the appearance of the portrayed bottle, resulting in a new advertisement. However, in the current dispute, the plaintiff failed to reveal the earlier court proceedings and orders, which is considered concealment and misrepresentation of material facts. Furthermore, the plaintiff only disclosed a sample of the numerous complaints lodged with the Advertising Standards Council of India (ASCI). This lack of disclosure is considered improper and constitutes the concealing of material facts.
• The court analyses forum shopping, noting that the plaintiff filed a similar petition before the Bombay High Court, which earlier denied an injunction. Due to the court’s previous decisions on identical issues, the plaintiff purposefully avoided filing the current complaint in that court, which amounts to forum shopping and disqualifies the plaintiff from relief.
• The court cites precedent-established standards in dealing with disparagement cases. It is permissible to boast or exaggerate in advertising but not to defame or disparage a competitor’s products. To some extent, comparative advertising is permitted, but it should never portray a competitor’s products as inferior, unwanted, or undesired. If an ad uses negative language against a competitor’s products to gain an advantage, innocent interpretations cannot be used as a defense.
• Finally, the Court ruled regarding the Print and WhatsApp Advertisements, as under
  • The court ruled that the print ad did not defame or disparage the plaintiff’s products and found no evidence that it specifically referred to the plaintiff’s product. In addition, the court stated that the claim that the defendant’s hair oil provided additional strength would be evaluated based on the evidence, but could not serve as a basis for an interim injunction.
  • Regarding the WhatsApp advertisement, the defendant refuted involvement, but evidence demonstrated that its employees participated in its distribution. The defendant’s liability for the actions of the employees was contested. The court determined that ordinary consumers would not see both the WhatsApp message and the print advertisement simultaneously, hence they are distinct entities. The plaintiff established a prima facie case against the WhatsApp advertisement, resulting in the defendant’s inability to circulate it.

Conclusion

The case sheds light on the relationship between intellectual property and advertising. It underlines the need of protecting registered trademarks and taglines, as well as the limitations on claiming exclusivity or disparaging comparative advertising. The court’s emphasis on the perspective of ordinary consumers emphasizes the necessity for advertising to strike a balance between creative expression and avoiding misleading or disparaging remarks. Furthermore, the case illuminates the problem of forum shopping and its potential impact on a party’s entitlement to relief. Stakeholders can get a greater grasp of the legal landscape and make educated decisions to safeguard their rights and avoid any conflicts by closely reviewing this case.

[1]Marico Ltd. v. Dabur India Ltd., 2022 SCC OnLine Del 2070;  https://www.livelaw.in/pdf_upload/judgementphp-475222.pdf.

[2] Gujarat Co-operative Milk Marketing Federation Limited &Ors, 2017 SCC OnLine Bom 2572.

[3] Gujarat Bottling Co. Ltd. and Others v. Coca Cola Co. and Others, (1995) 5 SCC 545.

[4] Puro Wellness Pvt. Ltd. v. Tata Chemicals Ltd., 2019 SCC OnLine Del 10766.