Calcutta High Court
Emami Limited vs Dabur India Limited on 2 July, 2025
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
2025:CHC-OS:102-DB
In the High Court at Calcutta
Commercial Appellate Jurisdiction
Original Side
The Hon'ble Justice Sabyasachi Bhattacharyya
And
The Hon'ble Justice Uday Kumar
A.P.O.T. No.53 of 2025
(IA No.GA-COM 1 of 2025)
Arising out of
IP-COM No.18 of 2024
(IA No.GA 1 of 2024 and GA 2 of 2024)
Emami Limited
Vs
Dabur India Limited
For the appellant : Mr. Debnath Ghosh, Sr. Adv.,
Mr. Shuvasish Sengupta, Adv.,
Mr. Biswaroop Mukherjee, Adv.,
Ms. Mini Agarwal, Adv.,
Ms. Ratnadipa Sarkar, Adv.
For the respondent : Mr. Sudipto Sarkar, Sr. Adv.,
Mr. Sourajit Dasgupta, Adv.,
Mr. R. Jawaharlal, Adv.,
Ms. Megha Kumar, Adv.,
Mr. Sudhakar Prasad, Adv.
Heard on : 11.06.2025 & 25.06.2025 Hearing concluded on : 25.06.2025 Judgment on : 02.07.2025 Sabyasachi Bhattacharyya, J.:-
1. The present appeal assails an order dated January 17, 2025 passed in-
IP-COM No.18 of 2024 along with GA-COM 1 of 2024 and GA-COM 2 of
2024, modifying a previous order dated July 11, 2024 passed in the
said suit granting ad interim injunction restraining the respondent, its
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men, servants, agents, representatives and/or anyone claiming through
the respondent from displaying and/or playing and/or airing and/or
telecasting their advertisements for the product “Cool King” by showing
the bottle/container of the products “Dermi Cool” and/or “Navratna” of
the petitioner/appellant and by referring to the same as “Sadharan”.
By the impugned order, the learned Single Judge has modified the ad
interim order dated July 11, 2025 to the extent that there shall be an
interim order of restraint of the impugned advertisement, by making it
clear that the order of restraint shall apply to the impugned
advertisement as a whole and not any portion or any part or word of
the impugned advertisement. In the impugned order, it was inter alia
observed that the use of the word “ordinary” or “Sadharan” per se,
without any identification, cannot be interpreted to be defamatory or
disparaging.
2. The suit in which the impugned order was passed has been instituted
by the appellant Emami Limited alleging disparagement of its product,
a prickly heat powder, marketed under the name and style of “Dermi
Cool” and “Navratna”. In the impugned advertisement, a popular actor
of the Hindi Film Industry is seen to promote the product of the
defendant/respondent, Dabur India Limited, by the name of “Cool
King”, which is supposedly a similar product as the appellant‟s. At the
inception of the advertisement, which is a video clip widely broadcast in
television as well as audio visual media across social platforms, certain
ladies are shown to spew fire due to the extreme heat. Apparently, ice
crystals subsequently drop from the sky. A man, who was sweltering in
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the previous heat waves, was carrying a bottle, allegedly resembling the
bottle of the plaintiff‟s products, over the shape and design of which the
plaintiff has trademarks. Subsequently, coinciding with the ice
crystals, the popular film actor arrives at the scene with a bottle of the
defendant‟s product, who labels the earlier bottle as “Sadharan”
(ordinary) and providing a viable better alternative in the defendant‟s
product. Subsequently, the earlier product is replaced by the product
of the defendant by the protagonist, the man who was earlier sweltering
in the heat, and the defendant‟s product accepted as the better one.
3. Learned senior counsel for the appellant submits that the use of the
word “Sadharan”, in the context of the advertisement, demeans and
denigrates the product of the plaintiff/appellant. The resemblance
between the bottle shown by the protagonist as “Sadharan” with the
unique tapering bottle of the plaintiff/appellant, which has a typical
notch on the slanting cap of green colour, is striking. It is argued that
since the plaintiff is the market leader through its two products as
mentioned earlier, the dissemination of the advertisement to a huge
cross-section of the Indian society would immediately bring about a
comparison between the products of the plaintiff, which is shown in
poor light, and that of the defendant and would adversely affect the
goodwill and image of the plaintiff/appellants‟ product.
4. Learned senior counsel for the appellant submits that even after the
impugned order, the defendant has been continuing with the same
advertisement with the same popular actor, merely by replacing the
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bottle shown in the same. However, the bottle still remains similar2025:CHC-OS:102-DB
to
that of the plaintiff/appellant‟s product.
5. Apart from the same, it is argued by the appellant that the recall value
in the public perception is high since the general public, who are the
target group of the advertisement, would immediately connect the
denigrated bottle with that of the appellant‟s products, which would
considerably undermine the goodwill of the appellant‟s products in the
public mind.
6. It is next argued that the expression “Sadharan” in the advertisement
cannot be taken out of context. Used in the way that it has been, the
same is disparaging and is a direct denigration of the appellant‟s
product.
7. It is reiterated that while the appellant‟s products dominate the market,
the respondent is a new entrant in the field of prickly heat powders.
As such, the recall value mentioned earlier is pervasive.
8. Learned senior counsel for the appellant cites a Division Bench
Judgment of the Delhi High Court in the matter of Pepsi Co., Inc. and
Ors. v. Hindustan Coca Cola Ltd. and Anr., reported at 2003 SCC OnLine
Del 802 where under similar circumstances, it was held that the court
is to look at whether the advertisement or the commercial, as the case
may be, merely puff the product of the advertiser or in the garb of doing
so directly or indirectly contends that the product of the other trader is
inferior.
9. Learned senior counsel further cites Dabur India Limited v. Colgate
Palmolive India Ltd., reported at (2005) 79 DRJ 461, where a learned
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Single Judge of the Delhi High Court construed the expression
“Sadharan” to prefix the genre of the concerned product as a generic
disparagement of the class of products.
10. Next relying on a Division Bench judgment of the Madras High Court in
the matter of Gillette India Limited v. Reckitt Benckiser (India) Private
Limited, reported at 2018 SCC OnLine Mad 1126, learned senior
counsel for the appellant argues that under similar circumstances, the
said Division Bench held that advertisements in the electronic audio-
visual media leave an indelible impression in the minds of viewers and
have far greater impact than print advertisement. It was held there
that there was a strong prima facie case of disparagement in view of the
denigration of the concerned product. The Division Bench observed
inter alia that it was permissible for an advertiser to compare the
technology or the formula of the products or even claim its technology
or formula to be better than others and that the technology of the
others is obsolete, but without denigrating or disparaging the products
of others.
11. Lastly, learned senior counsel relies on Hindustan Unilever Limited v.
Reckitt Benckiser (India) Private Limited, reported at
MANU/DE/2447/2023, where another Division Bench of the Delhi High
Court observed that the similarity between competitive trademarks is
not required to be resolved by juxtaposing them and closely examining
various features of the trademarks. Similarity between the trademarks
is required to be reviewed from the standpoint of a person of average
intelligence and an imperfect recollection. It was held that it is not
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necessary that an advertisement must expressly and clearly mention
the competitor‟s products.
12. While opposing the appellant‟s arguments, learned senior counsel for
the respondent submits that the bottle shown in the offending
advertisement is different than that of the products of the appellant. As
opposed to the appellant‟s bottle, which is of a tapering shape and a
typical notch in its cap which is green in colour, the bottle shown in the
advertisement is uniformly cylindrical, having a common cap which is
black in colour.
13. It is argued that the lapse of almost a year between the passing of the
initial ad interim order of injunction and the present impugned order
has denuded any recall value whatsoever, even if there was any, in the
public mind. That apart, the expression “Sadharan” is not disparaging
per se, as rightly observed by the learned Single Judge.
14. Learned senior counsel further contends that the appellant has not
complained of any infringement of the trademark of its bottle, nor does
it have any trademark rights on the colour of the cap. Hence, the
learned Single Judge was justified in passing the impugned order.
15. It is further pointed out on behalf of the respondent that the
respondent categorically offered to remove any other bottle than that its
own product altogether from its advertisement at the stage of hearing of
the application under Order XXXIX Rule 4 of the Code of Civil
Procedure filed by the respondent, which was taken up for disposal
along with the temporary injunction application of the appellant in the
impugned order; however, such offer was refused by the appellant.
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16. The appellant contends that the genre of the products of the parties are
different – that of the appellant being an Ayurvedic product having
such certification whereas the product of the respondent is a cosmetic
item.
17. Learned senior counsel cites Hindustan Unilever Ltd. v. Emami Ltd.,
reported at 2019 SCC OnLine Del 7809, where it was held that the
cream depicted in the impugned TV Serial did not prima facie resemble
that of the product of the plaintiff therein.
18. It is pointed out by learned senior counsel for the respondent that in
the present case, the bottle used in the impugned advertisement does
not resemble that of the appellant‟s product.
19. Learned senior counsel next cites Dabur India Ltd. v. Emami Ltd.,
reported at 2019 SCC OnLine Del 9022, where another learned Single
Judge of the Delhi High Court took into consideration similar
circumstances and held that it is permitted to compare between
products and for an advertiser to claim that his product is the best.
20. Learned senior counsel next cites Dabur India Ltd. v. Wipro Ltd.,
reported at 2006 SCC OnLine Del 391, where a learned Singe Judge of
the Delhi High Court clarified that the disparagement should at least
border of defamation, which is absent in the present case.
21. Learned senior counsel submits that the landmark judgment in the
field is that of Reckitt & Colman of India Ltd. v. M.P. Ramchandran,
reported at (1999) 19 PTC 741 [also reported at 1998 SCC OnLine Cal
422], where it was held by a learned Single Judge of this Court that an
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advertiser can boast that its product has relative advantages over
market competitors as well as is technologically superior.
22. In the present case, it is argued that none of the criteria for getting an
injunction in a disparagement suit have been satisfied, since there is no
resemblance between the bottle now being shown in the impugned
advertisement and that of the appellant‟s products. The recall value
argument is also baseless.
23. Upon carefully considering the submissions of the parties and on
a close scrutiny of the two bottles – the one used in the offending
advertisement and the bottle containing the products of the appellant –
we find a marked difference between the two, which is visible to the
naked eye. Whereas the appellant‟s bottle is of a tapering shape,
having a green slanting cap with a distinct and unique notch, the bottle
shown in the assailed advertisement is a uniform cylinder without any
taper and has a round, level cap of black colour, which comes across as
blackish in the visual depiction in the advertisement. Thus, the bottles
are entirely different from each other, even without juxtaposing the two
and going by the standard of a person of ordinary prudence and
imperfect recollection.
24. While addressing the recall value contended by the appellant, we do not
find much merit in that either. We have to keep in mind that the ad
interim order of injunction was initially passed on July 11, 2024, after
which the offending bottle was removed altogether from the
advertisement. Such position persisted till the date of the impugned
order, that is, January 17, 2025. Thus, about six months elapsed in-
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between, during which period no bottle was shown in the advertisement
at all than that of the respondent‟s product.
25. Going by the perception of the common person having average
remembrance, we find that a double recall would have to be attributed
to such perception in order to accept the contention of the appellant.
The first component of such recall would be that the initial offending
advertisement carried a bottle similar to the one shown in the current
advertisement and the second component would be that the previous
bottle was associated with the product of the appellant.
26. Even taking into consideration the overreaching sweep of the
appellant‟s products in the market, unless one is an avid follower of
advertisements, having nothing better to do, it is improbable that a
common target consumer of normal prudence would have such double
recall upon viewing the „offending‟ advertisement, connecting the
present bottle with that of a bottle which was being shown six months
back, and to relate the previous bottle with the product of the
appellant.
27. Thus, in the absence of any direct correlation between the bottle now
being shown in the disputed advertisement and that containing the
product of the appellant, we find that the learned Trial Judge was
completely justified in turning down the “recall value” argument of the
appellant.
28. However, we may note here that the respondent‟s defence, that the
appellant‟s and respondent‟s respective products are of different genres
and hence cannot be connected or do not fall in the same bracket of
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competition, is not tenable. The public is not supposed to be 2025:CHC-OS:102-DB
so
educated in the ingredients of the products that they would discern
between the parties‟ products on the ground that one is Ayurvedic,
having medicinal qualities, and the other merely cosmetic. There is
nothing in the assailed advertisement to refer to the ingredients used in
either of the products as well. In the eye of the ordinary person, both
come under the genre of prickly heat powders.
29. Coming to the next component of the appellant‟s arguments, the word
“Sadharan” (ordinary), even if used in the „offending‟ advertisement, is
utilized in its generic sense, not to be equated with “inferior” so as to
debase the product of the appellant. The earlier bottle shown in the
advertisement is not degraded or thrown away or dealt with in a
derogatory manner. The protagonist using the earlier bottle is merely
convinced by the popular actor to use the product of the respondent
instead of the earlier product, the latter being labelled as ordinary as
compared to the respondent‟s product.
30. The lead landmark judgment in the field, as delivered by a learned
Single Judge of this Court in Reckitt & Colman of India Ltd. (supra)1
clearly distinguishes between an advertisement boasting about the
relative advantages of its own product and its technological superiority,
even if untrue. It was held that it is permissible to portray that the
advertiser‟s product is the best in the world. However, what is shunned
is the direct or indirect denigration of the product of another
manufacturer. Use of the word “Sadharan” in the context of the
1 Reckitt & Colman of India Ltd. v. M.P. Ramchandran, reported at (1999) 19 PTC 741 [also reported at 1998 SCC OnLine Cal 422].
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present advertisement does not speak ill about the product or say that
it is inferior as such. It merely projects the respondent‟s product as
extra-ordinary as compared to others‟ products, which are said to be
“Sadharan” or ordinary. As held by the Delhi High Court
consistently, particularly in Dabur India Ltd. v. Emami Ltd. (supra)2 and
Hindustan Unilever Ltd. (supra)3, there has to be a prima facie
resemblance of the two products and a clear denigration of the
plaintiff‟s product, drawing a parallel between a libel action and a suit
for disparagement. As held in Dabur India Ltd. v. Wipro Ltd. (supra) 4,
for an advertisement or a commercial to be disparaging, it should be
defamatory or should at least border on defamation.
31. In Dabur India Ltd. v. Emami Ltd. (supra)5, it was highlighted that a
propagation of the comparative advantage of the advertiser‟s product is
permissible, even projecting that its goods are the best, without saying
that the competitor‟s good is bad. The “look and feel” of the
advertisement and the message conveyed to an average person is what
is to be construed and the court, it was held, cannot suffocate
competition on a perceptive understanding. The right to free
commercial speech enshrined in Article 19(1)(a) of the Constitution was
also stressed.
32. In the present case, while balancing the right of free commercial speech
under Article 19(1)(a) and the right to do business under Article 19(1)(g)
of the Constitution, we have to strike a balance between such rights of
2 Dabur India Ltd. v. Emami Ltd., reported at 2019 SCC OnLine Del 9022.
3 Hindustan Unilever Ltd. v. Emami Ltd., reported at 2019 SCC OnLine Del 7809.
4 Dabur India Ltd. v. Wipro Ltd., reported at 2006 SCC OnLine Del 391.
5 Dabur India Ltd. v. Emami Ltd., reported at 2019 SCC OnLine Del 9022.
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advertising its own product available to the respondent with the right2025:CHC-OS:102-DB
of
the appellant to protect its own product.
33. In Pepsi Co. (supra)6, cited by the appellant, the concerned actor had
mouthed the name of the plaintiff‟s product and a circular device and
colour combination resembling the plaintiff‟s product was used.
34. As opposed thereto, in the instant case, there is no mouthing of the
name of the appellant‟s product at all and the bottle shown is
completely different in shape, size and colour from that of the
appellant‟s product.
35. In Dabur India Limited v. Colgate Palmolive India Ltd. (supra)7, a learned
Single Judge of the Delhi High Court in 2005 had discussed the
concept of “Sadharan”. However, in the said case, a tooth powder (dant
manjan) was the product in issue. The expression “dant manjan”,
which was a part of the name of the plaintiff‟s product in the said case,
was prefixed in the offending commercial by the word “Sadharan”, but
coupled with the claim that such “Sadharan” dant manjan was abrasive
and rough on the teeth.
36. In the present case, however, the use of the word “Sadharan” is not
coupled with any such aspersion against the product of the appellant
or, for that matter, any other product. Also, the names of the
appellant‟s products have not been used at all by replacing only a part
of it to create an impression in the mind of the viewer that the products
are the same.
6 Pepsi Co., Inc. and Ors. v. Hindustan Coca Cola Ltd. and Anr., reported at 2003 SCC OnLine Del 802.
7 Dabur India Limited v. Colgate Palmolive India Ltd., reported at (2005) 79 DRJ 461.
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37. In Hindustan Unilever’s case8, the Division Bench of the Delhi High
Court had categorically observed upon a comparison that the shapes of
the bottles of the two products were deceptively similar. Borrowing the
said proposition, even if we do not juxtapose and closely examine the
various features of the two bottles and view the similarity from the
standpoint of a person of average intelligence and imperfect
recollection, we fail to attribute any recall value connecting the
appellant‟s product with the bottle currently used in the impugned
commercial. Thus, the reliance of the appellant on the said judgment is
misplaced.
38. The Division Bench of the Madras High Court, in Gillette India Limited
(supra)9, had elaborated the synonyms of the term “disparagement”,
which has to tantamount to derogation and denigration of the product
of the competitor. In the said case, there was a specific derogation of
all products of a particular genre (hair removal creams) as a whole,
coupled with the allegation that all such creams use chemicals as
strong as bathroom cleaners. If a cosmetic product for hair removal, to
be used on the human skin, is said to contain chemicals as strong as
bathroom cleaners, it would evidently create an immediate adverse
inference in the mind of the viewers regarding the subject-product
which was sought to be denigrated.
39. We find a complete absence of any such malicious intention in the
impugned advertisement in the case at hand.
8 Hindustan Unilever Limited v. Reckitt Benckiser (India) Private Limited, reported at MANU/DE/2447/2023.
9 Gillette India Limited v. Reckitt Benckiser (India) Private Limited, reported at 2018 SCC OnLine Mad 1126.
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40. Thus, viewed from all perspectives, we fail to connect the use of the
word “Sadharan” with the product of the appellant. Hence, although
the offending advertisement uses the expression “Sadharan”, we agree
with the learned Trial Judge that the appellant is being hypersensitive
on such issue.
41. The freedom of commercial speech of the respondent and its
fundamental right to do business cannot be throttled on a vague
perception of disparagement, which is completely illusory in the present
case.
42. In the guise of a specific injunction, as prayed for in the plaint, what
the appellant is now seeking to obtain from the court is a dynamic plus
injunction, restraining all future advertisement of the respondent. In
its original form as granted in July, 2024, the ad interim order of
injunction in favour of the appellant would restrain the respondent
from broadcasting any advertisement which would show the bottle of
the appellant‟s product “Dermi Cool” and “Navratna”. We find that the
modified order which is impugned herein is wider in nature, stopping
the advertisement as a whole. In its original form, the ad interim order
would have restrained only the specific use of the bottles of the
appellant‟s products and, arguably, would not even have restrained the
use of a bottle of similar shape and size and having a cap of the same
colour (with its unique notch) as the appellant‟s product, merely if the
name of the products were not used.
43. As opposed thereto, by the present impugned order, the advertisement
has been completely stopped.
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44. Even otherwise, the injunction, if granted in the form as prayed for2025:CHC-OS:102-DB
in
the plaint, would have restrained the respondent from broadcasting any
advertisement which would disparage the product of the appellant. An
injunction of such generic and blanket nature would be
unimplementable, since it is for the court to decide, on a case-to-case
basis, as to whether a particular advertisement actually disparages the
said product. As opposed thereto, the modified injunction order as
granted by the learned Single Judge in the present case specifically
restrains the offending advertisement from being aired at all, thus,
giving complete and implementable protection to the appellant.
45. Whether a subsequent advertisement violates such injunction is a
matter for the Trial Court to consider on the facts of each alleged
violation withing the contemplation of Order XXXIX Rule 2A of the Code
of Civil Procedure. A mere allegation of post facto violation of an order
does not vitiate the order itself in any manner, justifying interference
with the order as it stands. That apart, as held above, we do not find
any direct or indirect reference to the product of the appellant in the
offending advertisement, which is being disseminated on social audio-
visual media and television on the strength of the order impugned
herein. As such, we do not find any merits in the appellant‟s
arguments.
46. Thus, A.P.O.T. No.53 of 2025 is dismissed on contest without any order
as to costs. Consequentially, IA GA-COM 1 of 2025 stands disposed of
as well.
47. Interim orders, if any, stand hereby vacated.
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48. It is clarified that this Court has not conclusively determined the merits
of the respective contentions of the parties, and it will be open to both
sides to argue their respective contentions on merits at the trial of the
suit before the learned Single Judge.
(Sabyasachi Bhattacharyya, J.)
I agree.
(Uday Kumar, J.)