Delhi High Court
Dabur India Limited vs Patanjali Ayurved Limited And Anr on 3 July, 2025
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 1195/2024, I.A. 49744/2024 & I.A. 419/2025
DABUR INDIA LIMITED .....Plaintiff
Through: Mr. Sandeep Sethi, Sr. Adv. with Mr.
R. Jawahar Lal, Mr. Anirudh Bakhru
and Ms. Meghna Kumar, Advocates
M: 9750610115
versus
PATANJALI AYURVED LIMITED AND ANR. .....Defendants
Through: Mr. Rajiv Nayar, Sr. Adv. and Mr.
Jayant Mehta, Sr. Adv. with Mr.
Rohit Gandhi, Mr. Simranjeet Singh,
Mr. Saurabh Seth, Ms. Neha Gupta,
Mr. Rishabh Pant, Mr. Yajat Gulia
and Ms. Tina Aneja, Advocates.
M: 9971919424
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
JUDGMENT
% 03.07.2025
MINI PUSHKARNA, J:
I.A. 49744/2024 & I.A. 419/2025
1. The present suit has been filed seeking a decree of permanent and
mandatory injunction against the advertisements of the defendants for their
product, namely, „Patanjali Special Chyawanprash‟, alleging disparagement
and denigration of plaintiff‟s product, namely, „Dabur Chyawanprash‟, and
the entire class of Chyawanprash in general.
Signature Not Verified
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By:HARIOM
Signing Date:03.07.2025
20:35:13
2. I.A. No. 49744/2024 has been filed seeking interim relief qua the
impugned Hindi television commercial (“TVC”) and impugned Hindi print
advertisement issued by the defendants. I.A. No. 419/2025 has been filed
seeking interim relief qua impugned English print advertisement issued by
the defendants. The said impugned TVC and Hindi and English print
advertisements (“Print Advertisements”) have been issued by the defendants
in relation to their product, „Patanjali Special Chyawanprash‟. It is the case
of the plaintiff that by way of the impugned TVC and Print Advertisements,
the defendants have disparaged „Dabur Chyawanprash‟ specifically, and
Chyawanprash in general, and the same constitutes specific as well as
generic disparagement. The plaintiff has further pleaded that false and
misleading statements have been made in the impugned TVC and Print
Advertisements in disparaging comparison with „Dabur Chyawanprash‟ and
other existing Chyawanprash in the market.
3. It is the case of the plaintiff that in the impugned TVC and Print
Advertisements, the defendants have clearly and undisputedly identified,
denigrated and disparaged plaintiff‟s „Dabur Chyawanprash‟ and disparaged
all Chyawanprash in the market. Hence, the present suit has been filed
seeking permanent and mandatory injunction, and damages for denigration
and disparagement. The present applications have been filed seeking interim
relief of stay on the TVC and Print Advertisements.
Submissions on behalf of the plaintiff:
4.1 Defendants have clearly identified and disparaged plaintiff‟s „Dabur
Chyawanprash‟ in their impugned Print Advertisements, by specifically
mentioning „40 herbs‟ and urging consumers not to settle for or buy
Chyawanprash containing 40 herbs. Plaintiff is the market leader in
Signature Not Verified
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By:HARIOM
Signing Date:03.07.2025
20:35:13
Chyawanprash product category with 61.60% market share as of October,
2024, and it is a known fact that plaintiff‟s „Dabur Chyawanprash‟ is widely
advertised as containing „40+ herbs‟.
4.2 The language of the impugned TVC, specifically the line, “Jinko
Ayurved aur Vedo ka gyaan nahi, Charak, Sushrut, Dhanvantri aur
Chyawanrishi ki Parampara ke anuroop, Original Chyawanprash kaise
bana payinge?”, falsely conveys to the customers that only the defendants
have the knowledge to prepare Chyawanprash and other manufacturers do
not follow the correct tradition and consequently, that the other products
available in the market are ordinary, i.e., fake.
4.3 Defendants cannot say that plaintiff and other manufacturers of
Chyawanprash lack the necessary knowledge and technical know-how to
prepare Chyawanprash as it is a classical ayurvedic medicine as per Section
3(a) of the Drugs and Cosmetics Act, 1940 (“Drugs and Cosmetics Act“).
As per the definition of Ayurvedic, Siddha or Unani (“ASU”) drug under the
Drugs and Cosmetics Act, there is no mandate or requirement for a
manufacturer to first have „knowledge‟ of Ayurveda or Vedas to make
Chyawanprash. Any set of ingredients and formulae/recipe prescribed in any
of the authoritative books mentioned in the First Schedule of the Drugs and
Cosmetics Act can be followed to make Chyawanprash.
4.4 By stating that defendants‟ product is „special‟ and other
Chyawanprash are „ordinary‟, defendants have disparaged the entire class of
Chyawanprash in general. Defendants have used the word „ordinary‟ in a
negative way to denigrate plaintiff‟s product as inferior, below average, or
just plain. All licensed Chyawanprash products are made in accordance with
the Drugs and Cosmetics Act and are classical ayurvedic medicine, and
Signature Not Verified
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By:HARIOM
Signing Date:03.07.2025
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therefore, there cannot be „ordinary Chyawanprash‟.
4.5 Recipe used by the defendants is from the authoritative text, Ayurved
Sar Sanhita and is titled as, „Chyawanprash (Special)‟. In accordance with
Rule 161(3)(i) of the Drug Rules, 1945 (“Drug Rules”), which mandates that
the name of the ASU drug for which license has been obtained should be the
same as mentioned in the authoritative books as per First Schedule of Drugs
and Cosmetics Act, defendants were required to name their ASU drug
product – „Patanjali Chyawanprash (Special)‟, and not „Patanjali Special
Chyawanprash‟, as it changes the whole context of the word „special‟ and
disparages other Chyawanprash products as well. Use of prefix „special‟ is
also violative of Rule 157(1B) of the Drug Rules.
4.6 Product in question is an ASU drug under the Drugs and Cosmetics
Act and therefore, the standards to be applied in respect of misleading
advertisements must be higher and a stricter approach must be adopted.
4.7 An average person would necessarily be influenced by the impugned
TVC wherein Mr. Ramdev, who is an acknowledged yoga and vedic expert,
categorises his product as „special/original‟, and others as „ordinary‟.
4.8 The impugned Print Advertisements falsely convey to the customer
that plaintiff‟s Chyawanprash is inferior, as it contains only 40 ingredients
and customers should opt for a superior product which has 51 ayurvedic
herbs. Whereas, defendants have themselves admitted that their product
contains 46 herbs and the usage of „51 herbs‟ is by and large truthful in oral
arguments as well as in Para 19 of their Reply to I.A. 49744/2024. Recipe
followed by defendants as per Ayurved Sar Sanhita includes ingredients
such as ghee, chini, chandi ka vark, etc., which cannot be classified as
„ayurvedic herbs/jadi bootiyaan‟ as claimed by defendants, and are simply
Signature Not Verified
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By:HARIOM
Signing Date:03.07.2025
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ayurvedic ingredients. Such statement constitutes blatant misrepresentation
in order to influence customers to reject other Chyawanprash in favour of
healthier Chyawanprash. It is settled law that untruthful comparison is
impermissible.
4.9 Defendants, instead of promoting positive attributes of their product,
falsely claim that all other Chyawanprash, including „Dabur Chyawanprash‟,
offer no immunity. This amounts to generic as well as specific
disparagement.
4.10 Defendants‟ „Patanjali Special Chyawanprash‟ contains mercury. The
Drugs and Cosmetics Act and the Drug Rules made thereunder, specifically
Rule 161(2), mandate that a product containing mercury or any Schedule
E(I) substance, has to carry the disclaimer, “Caution: To be consumed under
medical supervision”, which is absent from the defendants‟ advertisements.
Despite not having printed the aforenoted advisory in their impugned
advertisements, the defendants have specifically promoted their product to
„masoom bacche‟/infants and children and the same is against public
interest.
4.11 Defendants‟ advertisements are misleading as, firstly, they cause
deception/have the potential to deceive the public, and secondly, because of
such deceptive nature, they can affect the economic behaviour of the public.
4.12 Misstatements made by defendants are serious statements of fact,
made in the context of an ayurvedic drug under the Drugs and Cosmetics
Act, and cannot be regarded as puffery. The truthfulness of such assertions
or statements of fact is to be strictly tested.
Submissions on behalf of the defendants:
5.1 Impugned TVC and Print Advertisements are instances of puffery,
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wherein, the additional positive attributes of defendants‟ product are being
highlighted and consumers are encouraged to opt for the same. There is no
mention or identification, either verbal or visual, of plaintiff‟s product or any
other Chyawanprash product in the impugned TVC or Print Advertisements.
Puffery is not actionable and does not amount to disparagement as it is not
taken literally by average customer and therefore, some level of untruth is
acceptable.
5.2 If no specific reference is made to plaintiff‟s product, the plaintiff
cannot claim that it is being specifically targeted solely on the basis of its
dominant market share.
5.3 Impugned TVC must be considered in entirety and not frame-to-
frame. When taken as a whole, the advertisements only highlight the
distinguishing qualities of defendants‟ product. Use of „ordinary‟ is only to
highlight defendants‟ product as a healthier alternative with more
ingredients and not to disparage or denigrate other Chyawanprash products.
The word „ordinary‟ is used by defendants only as an identifier of existing
products in the market, and not intended to disparage.
5.4 Commercial advertising is protected as a fundamental right under
right to freedom of speech and expression under Article 19(1)(a) of the
Constitution of India. Certain amount of implied disparagement is inherent
in commercial advertising as long as competitor‟s brand is not identifiable
and not disparaged specifically. Furthermore, content of commercial
advertisement only needs to be „by and large truthful‟. Certain reasonable
degree of creative freedom is allowed in advertising and plaintiff cannot be
hyper-technical as comparative advertisement is permissible and promoted.
5.5 No reasonable man of average intelligence viewing or reading the
Signature Not Verified
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By:HARIOM
Signing Date:03.07.2025
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impugned advertisements would view it as a derogation of plaintiff‟s
product or any other Chyawanprash product.
5.6 Defendants‟ product is based upon the formulation titled, „Special
Chyawanprash‟, prescribed in the Ayurved Sar Sanhita authoritative text.
The name of defendants‟ product is in accordance with the one provided in
the authoritative text and thus, not violative of Rule 157(1B) of the Drug
Rules. Further, the defendant no. 2 holds a valid license from the Licensing
Officer, Ayurvedic & Unani Services, Dehradun, Uttarakhand, for
manufacturing its product in the name of „Special Chyawanprash‟.
5.7 The plaintiff has itself admitted that defendants‟ product contains 55
ingredients. The issue of ingredients and herbs is a subject matter of trial
and detailed examination, which cannot be done at interim stage. There is no
case of misrepresentation.
5.8 „Makardhwaj‟ is prescribed as one of the ingredients in the „Special
Chyawanprash‟ formulation as per Ayurved Sar Sanhita. Plaintiff‟s reliance
on Schedule E(I) of the Drug Rules is misplaced as the same contains
poisonous substances, such as mercury, and not „makardhwaj‟.
„Makardhwaj‟ is a combination of purified parada (mercury), sulphur and
gold, which is an ayurvedic mineral herbal combination and is used as an
ingredient in ayurvedic formulations.
5.9 „Patanjali Special Chyawanprash‟ contains the label – “1-2
tablespoon with warm milk in the morning and evening or as directed by
physician”, and also cautions diabetic patients regarding consumption.
Arguendo, even if there is any issue with respect to the labelling of
defendants‟ product, the same is only actionable under Section 331(2) read
with Section 33M of the Drugs and Cosmetics Act.
Signature Not Verified
Digitally Signed CS(COMM) 1195/2024 Page 7 of 62
By:HARIOM
Signing Date:03.07.2025
20:35:13
5.10 No relief which is itself in the nature of a final relief, can be granted at
the interim stage, and therefore, plaintiff is not entitled to any interim relief
as the prayers sought in I.A. 49744/2024 and I.A. 419/2025 are identical to
the prayer in the suit.
6. I have heard learned counsels for the parties and have perused the
record.
Storyline of the impugned TVC and Print Advertisements
7. At the outset, this Court takes note of the story board of the impugned
TVC, as follows:
Jinko Ayurved or Vedon ka
gyaan nahi
Translation: Those who do
not possess knowledge of
Ayurveda or VedasCharak, Sushrut, Dhanvantri
aur Chyawanrishi
Translation: Charak,
Sushrut, Dhanvantri and
ChyawanrishiSignature Not Verified
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By:HARIOM
Signing Date:03.07.2025
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Ki parampara ke anuroop,
original Chyawanprash kaise
bana payenge
Translation: In accordance
with the said traditions /
procedures, how will they
prepare original
Chyawanprash?
Humne rishiyon ki virasat
Translation: We, who
possess the heritage of Sages
Aur vigyan ke anusar 51
beshkeemti jadi bootiyon
Translation: And based on
their (sages‟) knowledge,
using 51 priceless medicinal
herbs
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By:HARIOM
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Aur kesar yukta
Translation: And with
Saffron
Patanjali Special
Chyawanprash banaya
Translation: We have
prepared Patanjali Special
Chyawanprash
Jo aapke shareer ko medical
store banne se bachata hai
Translation: Which prevents
your bodies from becoming
a medical store
Signature Not Verified
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By:HARIOM
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Aapke masson bacchon aur
parivar ke immunity ko
badhata hai.
Translation: And boosts the
immunity of your innocent
children and families.
Jab shreshtam Patanjali
Chyawanprash hai
Translation: When the best
Chyawanprash, i.e.,
Patanjali, is there ...
Toh ordinary Chyawanprash
kyu?
Translation: ...Then why
choose ordinary
Chyawanprash?
8. Perusal of the aforesaid story board shows that the impugned TVC
opens with the question – “Jinko Ayurved aur Vedo ka gyaan nahi, Charak,
Sushrut, Dhanvantri aur Chyawanrishi ki parampara ke anuroop, original
Chyawanprash kaise bana payenge?” – posed by Mr. Ramdev, while sitting
under a tree in a meditative yoga posture. He is shown perusing authoritative
texts/rishiyon ki virasat while his voice-over informs the audience that
„Patanjali Special Chyawanprash‟ contains 51 precious herbs and is made inSignature Not Verified
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By:HARIOM
Signing Date:03.07.2025
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accordance with science and the inherited knowledge of great sages, which
prevents the human body from becoming a medical store. It is further
conveyed that „Patanjali Special Chyawanprash‟ enhances the immunity of
innocent children and families. The advertisement concludes with another
question being put to the audience – “Jab shreshtam Patanjali
Chyawanprash hai, toh ordinary Chyawanprash kyu?” – and Mr. Ramdev
is shown consuming „Patanjali Special Chyawanprash‟.
9. Apart from the impugned TVC, the plaintiff is also aggrieved by the
Hindi as well as English print advertisements in relation to defendants‟
„Patanjali Special Chyawanprash‟, which are reproduced as under:
Signature Not Verified
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By:HARIOM
Signing Date:03.07.2025
20:35:13
10. As is evident from the perusal of the aforenoted impugned Print
Advertisements, „Patanjali Special Chyawanprash‟, having 51 precious
herbs and saffron, is shown as a better/superior alternative to „ordinary‟
Chyawanprash which, in comparison, has only 40 herbs. Echoing the
storyline and sentiment of the TVC, the Print Advertisements, while againSignature Not Verified
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By:HARIOM
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featuring Mr. Ramdev consuming the product in question, emphasize that
defendants truly follow the tradition of Ayurveda established by the great
sages, Sushrut, Charak and Chyawan. A similar question as in the impugned
TVC is posed to the audience by way of the Print Advertisements – “Why
settle for ordinary Chyawanprash made with 40 herbs?”. This Court further
notes the information printed at the bottom portion of the Print
Advertisements which seeks to inform the reader that for the first time a
research paper has been published in a journal titled, „Frontiers of
Pharmacology‟, on „Patanjali Special Chyawanprash‟ which purportedly
verifies that it is the best Chyawanprash as it reduces inflammation and
boosts immunity.
Analysis & Discussion
11. Before dilating upon the merits of the contentions raised by both the
parties, this Court deems it proper to discuss the meaning and scope of
disparagement vis-à-vis comparative advertisement in India.
A. Comparative Advertisement, Puffery and Disparagement
12. Since time immemorial, advertisements have been a tool in the hands
of manufacturers and service providers, used as a medium to take their
goods and services to the masses and making themselves known. It is also a
source of information in the form of public notice. The methods and
manners of advertising are ever-evolving, in tandem with technological
advancement and increasing industrial competition. From hand-written
scribbles on paper scrolls, advertisements have changed forms, morphing
into Artificial-Intelligence (AI) generated animations on electronic screens.
13. In a competitive market space, advertising assumes even more
importance, with companies engaging in comparative advertising in order toSignature Not Verified
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capture higher market share. The intention behind comparative advertising is
simple, to advocate superiority of one‟s goods or services over one‟s
competitors and to influence the preference of the public. An instance of
permissible comparative advertising would be where the advertiser aims to
highlight the differences between its product/service and that of its
competitor in a manner which does not portray its competitor‟s
product/service in a bad or negative light.
14. The Trade Marks Act, 1999 also recognizes and permits comparative
advertising, though not in express terms. The relevant provisions of the
Trade Marks Act, 1999 are as under:
“29. Infringement of registered trade marks.–
xxx xxx xxx
(7) A registered trade mark is infringed by a person who applies
such registered trade mark to a material intended to be used for
labelling or packaging goods, as a business paper, or for advertising
goods or services, provided such person, when he applied the mark,
knew or had reason to believe that the application of the mark was
not duly authorised by the proprietor or a licensee.
(8) A registered trade mark is infringed by any advertising of that
trade mark if such advertising–
(a) takes unfair advantage of and is contrary to honest
practices in industrial or commercial matters; or
(b) is detrimental to its distinctive character; or
(c) is against the reputation of the trade mark.
(9) Where the distinctive elements of a registered trade mark
consist of or include words, the trade mark may be infringed by the
spoken use of those words as well as by their visual representation
and reference in this section to the use of a mark shall be construed
accordingly.
30. Limits on effect of registered trade mark.–(1) Nothing in
section 29 shall be construed as preventing the use of a registered
trade mark by any person for the purposes of identifying goods or
services as those of the proprietor provided the use–
(a) is in accordance with honest practices in industrial or
commercial matters, and
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(b) is not such as to take unfair advantage of or be detrimental
to the distinctive character or repute of the trade mark.
xxx xxx xxx”
(Emphasis Supplied)
15. This Court also takes note of the „Code for Self-Regulation of
Advertising Content in India‟ (“the Advertising Code”) issued by the
Advertising Standards Council of India (“ASCI”). Though not binding, the
said Advertising Code gives a useful input as to the content of
advertisements. Clauses 1.1 and 1.4 of the Advertising Code read as under:
“xxx xxx xxx
1.1 Advertisements must be truthful. All descriptions, claims and
comparisons, which relate to matters of objectively
ascertainable fact, should be capable of substantiation.
Advertisers and advertising agencies are required to produce
such substantiation as and when called upon to do so by The
Advertising Standards Council of India.
xxx xxx xxx
1.4. Advertisements shall neither distort facts nor mislead the
consumer by means of implications or omissions.
Advertisements shall not contain statements or visual
presentation, which directly, or by implication or by omission
or by ambiguity or by exaggeration, are likely to mislead the
consumer about the product advertised or the advertiser, or
about any other product or advertiser.
xxx xxx xxx”
(Emphasis Supplied)
16. Thus, a combined reading of the Trade Marks Act, 1999 and the
Advertising Code of ASCI makes it abundantly clear that comparative
advertising is permissible and practiced in India. However, relevant
safeguards and restrictions have been imposed to regulate such advertising
in order to ensure that consumers are protected from misleading
advertisements. Therefore, what must always be paramount is the interest of
the consumer. There is no restriction on comparative advertising as long as
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the use of competitor‟s mark/goods/service is fair, honest, truthful, and in
alignment with the interest of the public.
17. Comparative advertising is also another facet of the right to
commercial freedom of speech and expression, which is guaranteed under
Article 19(1)(a) of the Constitution of India. The scope of Article 19(1)(a)
vis-à-vis freedom of commercial speech has been widely discussed by the
Courts. Advertising is synonymous with commercial speech. Thus, Courts
have concluded that as commercial speech involves both, the advertiser‟s
right to disseminate information and the public‟s right to receive the same, it
is an essential aspect of freedom of speech and expression under Article
19(1)(a).
18. Having noted that, it is to be kept in mind that Article 19(1)(a) does
not permit dissemination of falsity or the right to defame, disparage or
denigrate any competitor. Like any fundamental right guaranteed under
Article 19 of the Constitution, commercial freedom of speech too is subject
to reasonable restrictions under Article 19(2). As public interest is supreme,
comparative advertising can be subject to regulation under Article 19(2) if
such advertising is misleading, unfair or untruthful.
19. What needs to be understood next is the constitution of a misleading
advertisement. A misleading advertisement is one which confuses the
customer and affects their economic behaviour by misrepresenting claims,
either with respect to advertiser‟s own product or that of any competitor‟s
product. When tricky language is used to perpetrate falsity and disguise
deception, the consumer is said to be misled. Falsity in regards to
misrepresentation is described in Halsbury‟s Laws of England, Volume 76,
5th Ed. (2024) at para 740 as follows:
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“xxx xxx xxx
740. What constitutes falsity.
A representation is deemed to have been false, and therefore
misrepresentation, if it was at the material date false in substance
and in fact. For the purpose of determining whether there has or
has not been a misrepresentation at all, the representor’s
knowledge, belief or other state of mind is immaterial, save in
cases where the representation relates to the representor’s state of
mind, although their state of mind is of the utmost importance for
the purpose of considering whether the misrepresentation was
fraudulent.
xxx xxx xxx”
(Emphasis Supplied)
20. Further, misleading actions and unfair commercial practice in cases of
comparative advertising are defined in Halsbury‟s Laws of England, Volume
21, 5th Ed. (2022) at para 425 as under:
“xxx xxx xxx
425. Misleading actions: confusion with competitors and breach of
industry codes.
A commercial practice is a „misleading action‟ if either:
(1) it concerns any marketing of a product (including
comparative advertising) which creates confusion with any
products, trade marks, trade names or other distinguishing
marks of a competitor; or
(2) it concerns any failure by a trader to comply with a
commitment contained in a code of conduct which the
trader has undertaken to comply with,
and it causes or is likely to cause the average consumer to take a
transactional decision he would not have taken otherwise, taking
account of its factual context and of all its features and circumstances.
A misleading action is an „unfair commercial practice‟, and a
trader who engages in a misleading action is guilty of an offence.
xxx xxx xxx”
(Emphasis Supplied)
21. Thus, what comes to the fore are two important factors, i.e., firstly,
deception or the likelihood of deception by an advertisement, and secondly,
the alteration of consumer‟s economic transactions as a result of such
deceptive and misleading advertisement. One exception to such
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deception/misrepresentation is the instance of puffing up of advertiser‟s own
product, also known as „puffery‟. Puffery is practiced by employing
hyperbole in order to exaggerate the qualities of goods or service, which is
more often than not, false. However, it is now well settled that puffery shall
only be used by advertisers in instances wherein it would be clear to the
average consumer that the statement made is not to be taken seriously.
22. In cases such as the present, it is the duty of the Court to examine
whether the impugned advertisement falls under the realm of puffery, or
whether it has transgressed the fine line separating it from disparagement.
Disparagement is nothing but the denigration and downgrading of a rival
product or service in an advertisement by way of misrepresentation or
otherwise, in order to influence the consumer to prefer the advertiser‟s
product over the competitor‟s product. In general parlance, „to disparage‟
means to belittle, to denigrate, to defame, to reproach, or to disgrace.
Whereas, the legal definition of disparagement as given in Black‟s Law
Dictionary, 8th Ed. (2004), is as follows:
“xxx xxx xxx
disparagement (di-spair-ij-mǝnt), n. 1. A derogatory comparison of
one thing with another.<the disparagement consisted in comparing
the acknowledged liar to a murderer>. 2. The act or an instance of
castigating or detracting from the reputation of, esp. unfairly or
untruthfully <when she told the press the details of her husband’s
philandering, her statements amounted to disparagement>. 3. A false
and injurious statement that discredits or detracts from the
reputation of another’s property, product, or business. • To recover
in tort for disparagement, the plaintiff must prove that the statement
caused a third party to take some action resulting in specific
pecuniary loss to the plaintiff. — Also termed injurious falsehood. —
More narrowly termed slander of title; trade libel; slander of goods.
See TRADE DISPARAGEMENT. Cf. commercial defamation under
DEFAMATION. [Cases: Libel and Slander – 130, 133. C.J.S. Libel
and Slander; Injurious Falsehood §§ 204-206, 209.] 4. Reproach,
disgrace, or indignity <self-importance is a disparagement ofSignature Not Verified
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greatness>. 5. Hist. The act or an instance of pairing an heir in
marriage with someone of an interior social rank <the guardian’s
arranging for the heir’s marriage to a chimney sweep amounted to
disparagement>. — disparage, vb.
xxx xxx xxx”
(Emphasis Supplied)
23. Thus, any attempt of an advertiser to portray a rival‟s goods or service
in a negative light, by either making false statements or using ambiguous or
deceptive visual and audio aids, will constitute disparagement. Negative
insinuation campaigns in the name of advertising are impermissible as they
go against the best interest of the public at large. In case of disparagement, a
number of factors, including, the intent, manner, storyline, mode, use of
celebrities as endorsers, etc., have to be looked into, in order to determine
the capacity and degree of deception. Advertisements cannot urge people not
to buy a certain product as the same constitutes disparagement. Therefore,
any representation by an advertiser which contravenes the requirements of
professional diligence and is likely to materially distort economic behaviour
of the average consumer with regard to the product is disparagement.
24. Furthermore, the nature of goods and services also affects the degree
of hyperbole which can be employed by advertisers. For example, in case of
a toilet cleaner or a liquid handwash, the degree of falsity in puffery would
be higher in comparison to what shall be tolerable when marketing a
medicine or a drug. The threshold at which Courts analyze misrepresentation
in commercial practice has to be much higher and stricter when the product
being advertised is capable of having a detrimental impact on the health of
the consumer.
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25. Keeping the aforesaid discussion in mind, this Court shall now
proceed to discuss the law of disparagement in respect of goods falling
under the purview of the Drugs and Cosmetics Act.
B. Test of disparagement in the context of Drugs and Cosmetics Act and
the Rules framed thereunder
26. Drugs and Cosmetics Act is a pre-Constitutional Act, based upon the
recommendations of a Drug Enquiry Committee under the chairmanship of
Lt.-Col. R.N. Chopra. The Chopra Committee had been set-up in the year
1931 to make recommendations regarding the method and means of
controlling production as well as sale of drugs and pharmaceuticals in India.
The Drugs and Cosmetics Act was essentially formulated to prevent sub-
standards in drugs and medicinal preparations to ensure public interest, as is
evident from the preamble of the Act itself, which reads as under:
“xxx xxx xxx
An Act to regulate the import, manufacture, distribution and sale of
drugs and cosmetics.
xxx xxx xxx”
Apart from regulating the sale and import of drugs, the Drugs and Cosmetics
Act also stipulates the compliances in respect of maintaining the standard
and quality of drugs. Any deviance from compliances in the manner of
misbranding, adulteration, etc., has penal consequences.
27. The drugs sought to be regulated under the Drugs and Cosmetics Act,
also include ASU drugs. ASU drugs, as defined under Drugs and Cosmetics
Act, are preparations whose formulations find their origin in any of the
authoritative texts mentioned in the First Schedule of the Drugs and
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Cosmetics Act. The official website of Ministry of AYUSH, Government of
India1 describes Ayurveda as:
“xxx xxx xxx
Ayurveda is a time-honored traditional system of medicine in India,
which elucidates the origins of various ailments, imparts knowledge of
life, and advocates the enhancement of physical, mental, and spiritual
well-being. It is regarded as the fifth Veda, believed to be an upaveda
of Atharvaveda. Numerous references to health, diseases, and their
treatments, including the use of non-materialistic approaches like
sunrays, fasting, mantras, etc., can be found in these Vedas. The
comprehensive documentation of Ayurvedic knowledge can be traced
back to texts such as ‘Brahma Samhita,’ ‘Ágniveshatantra,’ ‘Susrut
Samhita,’ ‘Bhela Samhita,’ among others.
According to Ayurveda, good health is considered fundamental for
achieving life’s goals – Dharma (duties), Arth (finance), Kama
(materialistic desires), and Moksha (salvation). Ayurveda emphasizes
the significance of Tri-danda, a conscious combination of Satva
(mind), Atma (real self), and Shareer (the body), which is essential for
human existence, similar to how a tripod supports a table. This
integrated approach has been instrumental in the enduring appeal
of Ayurveda across the ages.
xxx xxx xxx”
28. The regulatory framework of ayurvedic medicines, including, with
respect to their misbranding and adulteration, is modelled on the same lines
as that of allopathic medicines. Manufacturing of ayurvedic medicines
requires license from the concerned State Government as well as compliance
of standards prescribed in the Ayurvedic Pharmacopoeia. Statutory bodies,
namely the Ayurveda, Siddha, Unani Drugs Technical Advisory Board
(ASUDTAB) and Ayurveda, Siddha, Unani Drugs Consultative Committee
(ASUDCC) have been set-up under the Drugs and Cosmetics Act and are
especially dedicated to ayurvedic medicines, their regulation and
enforcement.
1
Website URL: – https://ayush.gov.in/#!/Ayurveda
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29. Relevant provisions of the Drugs and Cosmetics Act and the Drug
Rules framed thereunder are reproduced below for the sake of convenience:
The Drugs and Cosmetics Act, 1940
“xxx xxx xxx
3. Definitions
In this Act, unless there is anything repugnant in the subject or
context,–
(a) “Ayurvedic, Siddha or Unani drug” includes all medicines
intended for internal or external use for or in the diagnosis,
treatment, mitigation or prevention of disease or disorder in
human beings or animals, and manufactured exclusively in
accordance with the formulae described in, the authoritative
books of Ayurvedic, Siddha and Unani Tibb systems of
medicine, specified in the First Schedule;”
xxx xxx xxx
33E. Misbranded drugs
For the purposes of this Chapter, an Ayurvedic, Siddha or Unani
drug shall be deemed to be misbranded, —
(a) if it is so coloured, coated, powdered or polished that damage is
concealed, or if it is made to appear of better or greater
therapeutic value than it really is; or
(b) if it is not labelled in the prescribed manner; or
(c) if its label or container or anything accompanying the drug
bears any statement, design or device which makes any false
claim for the drug or which is false or misleading in any
particular.
xxx xxx xxx”
(Emphasis Supplied)
The Drug Rules, 1945
“xxx xxx xxx
157. Conditions for the grant of a licence in Form 25-D
…
(1B) No manufacturer shall use any prefix or suffix with the
name of any Ayurvedic, Siddha or Unani Tibb drug falling under
clause (a) of section 3 of the Act, except as described in the
authoritative books specified in the First Schedule to the Act:
PROVIDED that a formulation without any specific name,
described in the authoritative books may be named on the basis of the
ingredients of that formulation.
xxx xxx xxx
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161. Labelling, packing and limit of alcohol
…
(3) Subject to the other provisions of these rules, the following
particulars shall be either printed or written in indelible ink and
shall appear in a conspicuous manner on the label of the innermost
container of any Ayurvedic (including Siddha) or Unani drug and
Patent or Proprietary Ayurveda, Siddha or Unani drugs and on any
other covering in which the container is packed, namely:–
(i) The name of the drug. For Ayurveda, Siddha or Unani
Drug purpose the name shall be the same as
mentioned in the authoritative books included in the
First Schedule of the Act.
xxx xxx xxx”
(Emphasis Supplied)
30. Thus, what comes to light from the aforenoted discussion is that
ayurvedic medicines and their production, manufacturing, sale as well as
their branding and marketing are statutorily regulated in India. Therefore, as
a natural corollary, any marketing of an ASU drug covered under the First
Schedule of the Drugs and Cosmetics Act, whether in the form of an
advertisement, or otherwise, apart from ensuring compliance with
advertising and commercial practice laws, must be in strict compliance of
the said Act and its Rules.
31. This Court further takes note of a notification dated 19th January,
2021, placed on record before this Court, issued by Ministry of AYUSH,
Government of India in light of rising cases of misleading advertisements
and representations in regards to ASU drugs. The said notification reads as
under:
“T-11012/11/2020-DCC
Government of India
Ministry of Ayurveda, Yoga & Naturopathy, Unani, Siddha and
Homoeopathy
(AYUSH)
nd
NBCC Office Block-3, 2 Floor
East Kidwai Nagar, New Delhi- 110023Dated: 19.01.2021.
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Advisory
Subject: Prohibition of misleading advertisement and c1assical/Shastriye
Ayurvedic, Siddha and Unani (ASU) drugs- reg.
Whereas Drugs and Magic Remedies (Objectionable Advertisements)
Act, 1954 and Drugs & Cosmetics Rules, 1945 have prescribed provisions for
prohibition of misleading advertisements and claims of ASU drugs along with
penalty provisions for the defaulters;
Whereas ASU drugs defined under Section 3(a) of the Drugs &
Cosmetics Act, 1940 are manufactured for sale under license in accordance
with the formulae described in the authoritative books specified in the First
Schedule to the Act and are widely consumed by the public due to their
tradition of use and time-tested effectiveness;
Recently certain instances of ambiguous statements and unfounded
claims to denigrate classical/shastriye ASU drugs have been brought to the
notice of Central Government, which tantamount to be misleading to the
public and appear to be in contravention of the legal provisions for prohibition
of advertisement of drugs as well as desist public from consuming such ASU
formulations;
In view of the above, all the ASU drug manufacturers in the country are
hereby advised not to make and publicize any inappropriate statement or
misleading claim against classical/shastriye ASU drug and the State/UT
Licensing Authorities/Drug Controllers may take necessary action on the
instance of denigrating classical ASU formulation in terms of its name and use
amounted to misleading in nature under the provisions of Drugs and Magic
Remedies Act (Objectionable Advertisement), Act, 1954 and Drugs & Cosmetics
Rules, 1945.
xxx xxx xxx”
(Emphasis Supplied)
32. Thus, it is manifest that lower threshold for tolerance of
untruthfulness is the norm in the law relating to disparagement and degree of
comparative advertising permissible in the context of medicinal
preparations, especially, regulated drugs, including ASU drugs. The law of
disparagement as it stands today is well-settled. However, what emerges
from the combined reading of the Trade Marks Act, 1999, the Advertising
Code of ASCI, the Drugs and Cosmetics Act & Rules, and the notification
dated 19th January, 2021 of the AYUSH Ministry, is that the test of
disparagement and misrepresentation in the context of regulated drugs must
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be measured on a separate and stricter scale. The examination of the
likelihood of deception and level of untruthfulness has to be more stringent
in order to safeguard the interest of the public at large. Advertisers cannot be
permitted to exploit their right to commercial freedom of speech by resorting
to false, baseless and untruthful representations in the context of medicinal
preparations and drugs. What might be permitted by way of comparison or
puffery in case of a toilet cleaner might not be permissible when the product
involved is a regulated drug. The consumer must not be misled to believe in
false efficacy or superiority of a regulated drug in the name of commercial
freedom of speech, especially, if the drug or medicinal preparation in
question is known to be widely consumed and such misrepresentation is
made with the knowledge of its capacity of confusion and alteration of
financial transactional behaviour of consumer in respect of such drug or
medicine.
C. Analysis of merits of the case
33. This Court now proceeds to examine the merits of the contentions
raised by both the parties on the anvil of the findings noted above and in the
backdrop of the relevant law, as discussed hereinabove.
34. The plaintiff is aggrieved by the impugned TVC and Print
Advertisements inasmuch as they seek to convey to the public at large that
firstly, defendants‟ product is superior/better than all other Chyawanprash in
the market because the other Chyawanprash, and specifically, „Dabur
Chyawanprash‟, contain only 40 herbs and are ordinary, i.e., are not good
enough. Secondly, it is plaintiff‟s case that the defendants are making false
and misleading statements regarding a classical ayurvedic drug/medicine. A
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summary of plaintiff‟s submissions, relevant for the present discussion, is as
under:
Defendants cannot be permitted to say that only they have the
requisite knowledge of the Vedas to prepare Chyawanprash as it is an
ASU drug, regulated under the Drugs and Cosmetics Act and
prepared strictly in accordance with specific formulations/ingredients
as per authoritative texts mentioned in First Schedule of the Drugs
and Cosmetics Act. Thus, impugned TVC is an instance of generic
disparagement against all Chyawanprash in the market.
The defendants have specifically identified, disparaged and denigrated
plaintiff‟s Dabur Chyawanprash in their Print Advertisements by
specifically mentioning „40 herbs‟ as it is a known fact that the
plaintiff advertises its product as having 40+ herbs. Moreover,
plaintiff has over 61.60% market share and is the market leader in
Chyawanprash product category, therefore, any comparison being
made would make the consumer immediately connect it to plaintiff‟s
product.
Use of the word „ordinary‟ in relation to plaintiff‟s Chyawanprash and
other Chyawanprash in general, while labelling Patanjali
Chyawanprash as „special‟, is derogatory and disparaging as it seeks
to show plaintiff‟s Chyawanprash as inferior.
35. On the contrary, the defendants‟ relevant submissions are condensed
as follows:
There is no mention or identification of plaintiff‟s product or any
other Chyawanprash product in the impugned TVC or PrintSignature Not Verified
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Advertisements as no verbal or visual reference has been made to any
other brand of Chyawanprash.
Comparative advertisement is permissible under the applicable laws.
Further, Article 19(1)(a) of the Constitution of India guarantees
commercial freedom of speech, whereby, certain degree of creative
freedom can be exercised in advertising. Certain amount of implied
disparagement is inherent in commercial advertising.
Use of „ordinary‟ is only to highlight defendants‟ product as a
healthier alternative with more ingredients and not to disparage or
denigrate other Chyawanprash products.
Impugned advertisements are instances of puffery wherein the
additional positive attributes of defendants‟ product are being
highlighted and consumers are encouraged to opt for the same. It is
settled law that puffery is not actionable and does not amount to
disparagement.
No relief which is itself in the nature of a final relief can be granted at
the interim stage and therefore, plaintiff is not entitled to any interim
relief as the prayers sought in I.A. 49744/2024 and I.A. 419/2025 are
identical to the prayer in the plaint.
36. The impugned TVC labels „Patanjali Special Chyawanprash‟ as
original as it is prepared by defendants, who possess the true knowledge of
the ayurvedic texts and prepare the Chyawanprash in accordance with those
texts and traditions of the great sages. The impugned TVC further seeks to
convey that the manufacturers of other Chyawanprash in the market, i.e., the
competitors of defendants, do not have the requisite traditional knowledge as
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they do not “truly follow” the tradition/method as prescribed by the
ayurvedic texts.
37. Therefore, what seems to fall from the bare reading and audio-visual
viewing of the impugned TVC is that other existing Chyawanprash in the
market are ordinary and consumers ought not to settle for ordinary products,
which are not prepared in accordance with ayurvedic knowledge as they are
not manufactured as per ancient ayurvedic texts and tradition. This Court
further notes that the impugned TVC is narrated by Mr. Ramdev, who also
appears in the TVC in person. Mr. Ramdev is a known yoga guru in India
and is recognized as someone having knowledge of the Vedas. Thus, the
narrative of the impugned TVC assumes more importance coming from the
mouth of a person popularly known to be an expert in the field.
38. The said statement in the impugned TVC, in addition to being false, is
also misleading for the reason that the impression created by the defendants,
with Mr. Ramdev as the brand ambassador, is that only the defendants have
the knowledge of Ayurveda and Vedas, and can make original
Chyawanprash, as per the traditions. Whereas, fact of the matter is that
Chyawanprash is an ayurvedic medicine as defined under Section 3(a) of the
Drugs and Cosmetics Act, as noted above. As per Section 3(a) of the Drugs
and Cosmetics Act, an ayurvedic drug includes all medicines intended for
internal or external use, which are manufactured in accordance with the
formulae described in the authoritative books of ayurvedic systems of
medicine, as specified in First Schedule. Thus, as per the definition of an
ASU drug under Section 3(a) of the Drugs and Cosmetics Act, there is no
mandate/requirement for a manufacturer to first have “knowledge” of
Ayurveda and Vedas to make Chyawanprash. A manufacturer can make
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Chyawanprash by following the recipe/formulae, as prescribed in any of the
authoritative text listed in Schedule I.
39. Thus, as per the long-established law of disparagement, while it may
be open for the defendants to state that „Patanjali Special Chyawanprash‟ is
the best, it is not open for them to state that other manufacturers of
Chyawanprash lack the necessary knowledge and technical know-how to
prepare the same as per ayurvedic texts as the same is firstly, untrue and
secondly, misleading to the public at large.
40. Further, the aforenoted impugned Print Advertisements of the
defendants start with the slogan, „Why settle for ordinary Chyawanprash
made with 40 herbs?‟. The said advertisement then goes on to claim that
Patanjali truly follows the tradition established by great sages Sushrut,
Charak and Chyawan. The impugned Print Advertisements again seem to
convey an overall message to the consumers that only Patanjali
Chyawanprash is „special‟ and manufacturers of other Chyawanprash do not
„truly follow‟ the tradition/method or the ayurvedic texts. Furthermore, it is
conveyed that the composition of „Patanjali Special Chyawanprash‟ contains
51 precious herbs and saffron, and truly follows the tradition established by
the great sages of Ayurveda.
41. It is the case of the plaintiff that the reference to „ordinary
Chyawanprash made with 40 herbs‟ refers to the plaintiff‟s product, i.e.,
„Dabur Chyawanprash‟, since the plaintiff advertises its product as
Chyawanprash with 40+ ayurvedic ingredients. The advertisements of the
plaintiff for „Dabur Chyawanprash‟, with specific statement that the same
contains 40+ ayurvedic ingredients, as per the record, are reproduced as
under:
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42. It is to be noted that the product of the plaintiff has repeatedly and
continuously been advertised as having 40+ ayurvedic herbs, as reproduced
above. Thus, when the impugned Print Advertisements make the statement
that the defendants‟ „Patanjali Special Chyawanprash‟ is made of 51
precious ayurvedic herbs (Jadi Bootiyan), hence, it is „original‟, in
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comparison with the Chyawanprash containing 40 ayurvedic herbs, which
are ordinary, the reference is evidently targeted towards the plaintiff‟s
product. Hence, on one hand, while a positive statement has been made that
„Patanjali Special Chyawanprash‟ is in accordance with ancient ayurvedic
texts, on the other hand, in comparison, plaintiff‟s product, i.e., „Dabur
Chyawanprash‟, containing only 40 herbs, is shown in a negative light as
being ordinary, and not in accordance with the ancient ayurvedic texts.
43. The defendants have used the prefix „ordinary‟ in respect of other
Chyawanprash, while comparing „Patanjali Special Chyawanprash‟ with
other Chyawanprash in the market. While it has been held by Courts that
comparison with „ordinary‟ products may not amount to disparagement in
the context of comparison of attributes/benefits of two sets of products.
However, in the context of Chyawanprash, being an ASU drug/medicine,
there cannot be a comparison between „ordinary‟ Chyawanprash and
„Patanjali Special Chyawanprash‟. As noted above, Chyawanprash is a
classical ayurvedic drug/medicine as defined under Section 3(a) of the
Drugs and Cosmetics Act, and it must be prepared strictly in accordance
with the ingredients and the formulation, as listed in one of the ayurvedic
texts, listed in the First Schedule of the Drugs and Cosmetics Act. Hence, all
products made in accordance with the Drugs and Cosmetics Act, are
classical ayurvedic medicine, including, Chyawanprash. Therefore, there
cannot be „ordinary‟ Chyawanprash and to claim these are two classes of
Chyawanprash, i.e., „ordinary‟, which are deficient in ingredients, and
„special‟, which has extra herbs, amounts to disparaging the entire class of
Chyawanprash.
44. It is to be noted that Schedule I of the Drugs and Cosmetics Act
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contains the names of the authoritative books containing the formulae in
accordance with which the ASU drugs are to be manufactured. The same is
reproduced as under:
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45. While the plaintiff is stated to be following the Ayurveda books as
mentioned at serial no. 21 and 21(a) of the Schedule I, the defendants are
stated to be following the Ayurveda book listed at serial no. 54-B of the First
Schedule. Thus, when a drug, in the present case, Chyawanprash, is
manufactured in terms of the ayurvedic texts, as enlisted in the Drugs and
Cosmetics Act, the same would be authentic, and reference to the
Chyawanprash as „ordinary‟, would be disparaging. The same would also be
a false and misleading statement in the context of the comparison of 51
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ingredients with 40 herbs.
46. As per the Cambridge International Dictionary of English published
by the Cambridge University Press, „ordinary‟ means “not different, special
or unexpected in any way; usual”. It is also taken to be used in a negative
way to mean somewhat inferior and below average. Referring to other
Chyawanprash as „ordinary‟ would denote and give an impression that they
are inferior, especially, in the context of untrue claim that all other
manufacturers have no knowledge of ayurvedic texts and knowledge of
formulae to prepare Chyawanprash. This Court, in the case of Dabur India
Limited Versus Colgate Palmolive India Ltd.2, wherein the defendant‟s
application to modify its impugned advertisement and replace the phrase
„Lal Dant Manjan Powder‟ (red tooth powder) with „Sadharan Dant Manjan
Powder‟ (ordinary tooth powder) was rejected, has held as under:
“xxx xxx xxx
5. Thus the Division Bench of this Court in Pepsi Co.
Inc. v. Hindustan Coca Cola Ltd;, 2003 (27) PTC 305 (Delhi), and
two orders of the learned Single Judge held that rival product cannot
be disparaged. It has also been held that the generic disparagement
of a class or genre of the product is not permissible. Considering the
fact that in the proposed advertisement suggested by the defendant
in the present application the word „Lal‟ qualifying Dant Manjan
has been removed yet the harmful affect of Dant Manjan in general
amplified in the proposed advertisement by calling it „sadharan‟
dant manjan which is (khurdara) abrasive on the teeth still falls
within the prohibition of generic disparagement proscribed by the
judgment of this Court dated 9th September, 2004 and in this form is
not permissible. Accordingly, this application is dismissed.
xxx xxx xxx”
(Emphasis Supplied)
47. Thus, use of the word „ordinary‟ in the present context would lead an
average consumer to infer that the other Chyawanprash are either fake,
2
2004 SCC OnLine Del 1082
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inferior, or spurious, as compared to the Chyawanprash of the defendants,
which has been prepared by truly following the ayurvedic traditions. This is
undoubtedly a false statement, when Chyawanprash made by the plaintiff
and other manufacturers is also in accordance with the textbooks enlisted as
per the Drugs and Cosmetics Act.
48. Holding that the essential message conveyed by the advertisement
must be truthful, and where the reputation of the products/services of
another person is at stake, the truthfulness of the essential message should be
strictly tested, a Division Bench of this Court in the case of Colgate
Palmolive Company and Anr. Versus Hindustan Unilever Ltd.3, has held
as follows:
“xxx xxx xxx
49. If one considers the question, what is the message that is
conveyed by the impugned TVC, we have little doubt that any
reasonable person who views the impugned TVC would receive the
message that Pepsodent GSP is 130% more effective than Colgate
ST insofar as combating cavities is concerned. Certain consumers
who are not aware of the appellants products in premium segment are
also likely to conclude that Pepsodent GSP is better than the Colgate
toothpastes in view of the voice-over at the end of the impugned TVC.
The entire theme of the impugned TVC is conduct of a cavity test (the
expression “preventive” only appears, in a smaller font size, on the
banner at the commencement of the impugned TVC and is not referred
to thereafter). While the Pepsodent child clears the test with flying
colours apparently the Colgate child does not fare that well. Any
reasonable person viewing this advertisement would take with him the
message that Pepsodent GSP is significantly better in combating tooth
decay and oral germs/bacteria than Colgate/Colgate ST. A scientific
basis is sought to be supplied for the expression “130% better”, thus
this cannot be ignored as hyperbole. The erroneous usage of
percentage as a measure may be ignored but the statement that
Pepsodent is better that Colgate in respect of combating cavity
causing germs is, undoubtedly, a statement of fact. The message that
Pepsodent GSP is better than Colgate ST in combating tooth decay
(cavities) is the message that the impugned TVC delivers and this is
3
2013 SCC OnLine Del 4986
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a serious representation of fact. Thus, the question that requires to
be addressed is whether this claim by the respondent is truthful or
not.
50. The entire basis of the claim being made by the respondent is that
the In vivo and In vitro test conducted by independent laboratories
have found that concentration of triclosan in dental plaque, after four
hours of brushing, is higher where Pepsodent GSP has been used in
comparison with cases where Colgate ST is used. These findings are
also disputed. However, notwithstanding the dispute, the question
which arises is, does this parameter by itself lead to an inference that
Pepsodent GSP is more efficient in combating tooth decay and
cavities in comparison with Colgate ST. The co-relation between
higher concentration of Triclosan after four hours of usage of
Pepsodent GSP as claimed by the respondent and cavity prevention
qualities of the two compared products is vital to determine the
truthfulness of the impugned TVC. In the event, it is found that this
co-relation is illusory and a higher concentration of Triclosan in
dental plaque does not have a proportionate impact in combating
tooth decay or germ build up or that Colgate ST has certain other
ingredients in addition to Triclosan which also prevent tooth decay
then clearly the message sent out by the impugned TVC would be
untruthful and thus impermissible. To illustrate this point, let us take
a hypothetical case of comparison between two motor vehicle
manufacturers. While one manufacturer may use an engine of a
higher cubic capacity, the other manufacturer, while using an engine
of a lower capacity may tune it differently and employ a better fuel
injection system which, in fact, leads to delivering more power to the
wheels in comparison to the vehicle employing the larger capacity
engine. While it would be appropriate for the car manufacturer using
a larger engine to put out a comparative advertisement indicating that
the engine used in vehicles manufactured by him were of a higher
capacity than the engine used by other car manufacturer, it would be
completely misleading if the former car manufacturer would on the
basis of a higher capacity engine proclaim that the vehicles
manufactured by him were more powerful and faster than that of his
competitor. The essential message conveyed by the advertisement
must be truthful and given the fact that in a case of comparative
advertisement where the reputation of the products/services of
another dealer/person is at stake, the truthfulness of the essential
message should be strictly tested.
51. In the case of Lakhanpal National Ltd. v. M.R.T.P.
Commission : (1989) 3 SCC 251, the Supreme Court explained that
an advertisement may contain inaccurate facts yet convey an
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essentially truthful message. On the other hand, an advertisement
may be entirely accurate on facts but convey a completely
misleading message. In that case, advertisements were issued by a dry
cell battery manufacturer who was manufacturing and dealing in
power cells under the brand name “Novino”. The advertisements
announced that Novino batteries were manufactured in collaboration
with National Panasonic of Japan using National Panasonic
techniques. In fact, there is no company known as National or
Panasonic. The same were brands names of Mitsushita Electric
Industrial Co. Ltd. Technically viewed, the advertisement contained
inaccurate facts, however, the Supreme Court held that viewed from
the perspective of the message that was being communicated, the
same could not be held to be untrue. This was explained by the
Supreme Court in the context of unfair trade practice as under : –
“7. However, the question in controversy has to be answered by
construing the relevant provisions of the Act. The definition of
“unfair trade practice” in Section 36-A mentioned above is not
inclusive or flexible, but specific and limited in its contents. The
object is to bring honesty and truth in the relationship between
the manufacturer and the consumer. When a problem arises as
to whether a particular act can be condemned as an unfair trade
practice or not, the key to the solution would be to examine
whether it contains a false statement and is misleading and
further what is the effect of such a representation made by the
manufacturer on the common man? Does it lead a reasonable
person in the position of a buyer to a wrong conclusion? The
issue cannot be resolved by merely examining whether the
representation is correct or incorrect in the literal sense. A
representation containing a statement apparently correct in the
technical sense may have the effect of misleading the buyer by
using tricky language. Similarly a statement, which may be
inaccurate in the technical literal sense can convey the truth
and sometimes more effectively than a literally correct
statement. It is, therefore, necessary to examine whether the
representation, complained of, contains the element of
misleading the buyer. Does a reasonable man on reading the
advertisement form a belief different from what the truth is?
The position will have to be viewed with objectivity, in an
impersonal manner. It is stated in Halsbury’s Laws of England
(4th Edn., paras 1044 and 1045) that a representation will be
deemed to be false if it is false in substance and in fact; and the
test by which the representation is to be judged is to see whether
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representee. “Another way of stating the rule is to say that
substantial falsity is, on the one hand, necessary, and, on the
other, adequate, to establish a misrepresentation” and “that
where the entire representation is a faithful picture or transcript
of the essential facts, no falsity is established, even though there
may have been any number of inaccuracies in unimportant
details. Conversely, if the general impression conveyed is false,
the most punctilious and scrupulous accuracy in immaterial
minutiae will not render the representation true”; Let us
examine the relevant facts of this case in this background.”
xxx xxx xxx”
(Emphasis Supplied)
49. Recently, this Court, in the case of Hindustan Unilever Limited
Versus RSPL Limited4, while adjudicating an interim injunction application,
restrained the defendant from airing its impugned television commercial in
respect of its „Ghadi‟ detergent due to easy identification of plaintiff‟s
product, i.e., „Surf Excel Easy Wash‟ and the negative comparison between
the two rival products, has held as under:
“xxx xxx xxx
32. This Court is currently hearing this matter in the Vacation Bench.
The Court has viewed the four commercials against which the interim
injunction is being sought. The settled legal position in this regard has
been considered and decided in various decisions of this Court passed
by the Co-ordinate Benches as also Division Benches. The said legal
position can be summarised as under in simple terms:
(i) That it is permissible for an advertiser to undertake an
advertising campaign to promote its own product so long as
the same is not deliberately tarnishing or defaming the
competitor‟s product; and
(ii) There ought to be no derogatory remarks made against any
competitor‟s product.
(iii) While puffing is permissible, defamation and tarnishment is
not.
33. After applying these principles, the Court is of the prima facie
opinion that the manner in which the advertisements themselves
flow, from a lay persons point of view, clearly the reference that is
being made to the competitor‟s product by the Defendant could be
taken to be „Surf Excel‟ i.e. product of the Plaintiff.
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34. Under such circumstances, though comparative advertising by
itself could be healthy, remarks that are derogatory and defamatory,
would not be permissible and therefore, as an ad-interim
arrangement, this Court is prima facie inclined to direct the
Defendant to remove the following phrases which are clearly
derogatory and make negative innuendos qua the Plaintiff‟s „Surf
Excel‟ product, from the impugned advertisements:
○ „Aapka kare badi badi baatein par dho nahi paate‟
[„Your product makes tall claims but cannot wash‟]
○ „Iske jhaag acche hai, daam acche hai‟
[„Its foam is good, price is good‟- Expressions which clearly
refers to the Plaintiff‟s product prima facie and appear to be
derived from the „Daag ache hai‟ campaign of the Plaintiff]
○ „Na Na, yeh dhoka hai‟
[„No, No, this is a fraud (product)‟]
xxx xxx xxx”
(Emphasis Supplied)
50. In the context of comparative advertising, the established legal
position is that an advertisement must not be false, misleading, unfair or
deceptive, irrespective of whether it is extolling the advertised product or
criticizing its rival. Misrepresentation and untruth in advertisements is
impermissible. An advertisement has necessarily to be honest, meaning
thereby, that an advertisement cannot convey an overall misleading
message, seen from the stand point of the customer. Extolling of one‟s
positive feature is permissible and some element of hyperbole and untruth
has been accepted to be inherent in puffery. However, denigration of a
competitor‟s product is completely impermissible. In comparative
advertising, it is permissible to state that the advertised product is superior to
the competitor‟s. However, it is not permissible to attribute this superiority
to some failing or fault in the product of the competitor. The delicate
distinction between stating one‟s goods to be superior to the others and the
others‟ goods to be inferior to one‟s own has to be adhered to. What matters
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viewer‟s mind. (See: Reckitt Benckiser (India) Pvt. Limited and Another
Versus Wipro Enterprises (P) Limited.5)
51. Holding that in a comparative advertisement, it is open for an
advertiser to embellish the qualities of its product, but it is not open for it to
claim that the goods of its competitors are bad, undesirable or inferior, a
Division Bench of this Court, in the case of Reckitt Benckiser (India)
Private Limited Versus Hindustan Unilever Limited6, has held as follows:
“xxx xxx xxx
24. In a comparative advertisement, it is open for an advertiser to
embellish the qualities of its products and its claims but it is not
open for him to claim that the goods of his competitors are bad,
undesirable or inferior. As an illustration, in a comparative
advertisement, it is open for an advertiser to say his goods are of a
good quality but it is not open for an advertiser to send a message
that the quality of the goods of his competitor is bad. As observed by
the Chancery Division in De Beers Abrasive Products Ltd. case9, it is
open for a person to claim that he is the best seller in the world or a
best seller in the street but it is not open for him to denigrate the
services of another. Thus, it is not open for an advertiser to say “my
goods are better than X’s, because X’s are absolutely rubbish”.
Puffery and hyperbole to some extent have an element of
untruthfulness. If a tailoring shop claims that he provides the best
tailored suits in the city, the same may be untruthful. However, it is
apparent to anyone who reads or hears this statement that it is
puffery. Such statements or taglines are neither held out nor
understood as a representation of unimpeachable fact. It is obvious
that the person availing services from the tailoring shop, as mentioned
above, cannot maintain an action of misrepresentation. However,
when it comes to statements made by an advertiser in respect of the
goods of his competitors and other persons, the latitude available to
an advertiser is restricted. Whilst it is open for the tailoring shop to
state that it provides the best tailored suit in the city; it is not open
for it to advertise that the other tailoring shops in the street lack the
necessary skill and their suits are ill-tailored.
xxx xxx xxx”
(Emphasis Supplied)
5
2023 SCC OnLine Del 2958 at Para 111
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52. In similar vein, while holding that comparative advertisements by
their very nature and intent include statements which advertise goods of the
advertiser as better, however, such statements cannot exceed the permissible
limit of puffery, which leads to defamation and disparagement of the
competitor‟s goods, this Court in the aforesaid case of Reckitt Benckiser
(India) Pvt. Limited and Another Versus Wipro Enterprises (P) Limited
(supra), has held as follows:
“xxx xxx xxx
62. Apropos puffery, this Court further noted, referring to the
decisions of the Chancery Division in De Beers
Abrasive v. International General Electric Co.[(1975) 2 All ER 599]
that puffery, as a matter of pure logic, involved an element of
denigration of the rival’s goods. The distinction between permissible
puffery and impermissible puffery was held to be accurately captured
in the following passage from De Beers Abrasive [(1975) 2 All ER
599:
“Obviously the statement: „My goods are better than XV is
only a more dramatic presentation of what is implicit in the
statement:„My goods are the best in the world‟. Accordingly, I
do not think such a statement would be actionable. At the
other end of the scale, if what is said is:„My goods are better
than X’s, because X’s are absolute rubbish‟, then it is
established by dicta of Lord Shand in the House of Lords
in White v. Mellin27, which were accepted by counsel for the
Defendants as stating the law, the statement would be
actionable.
63. It was further held that puffery and hyperbole, to some extent,
involved an element of untruthfulness. However, as they are not
intended to be viewed as serious statements of fact, they are
permissible. For example, if a tailoring shop claimed to be providing
the best tailored suit in the city, though the statement may have been
untruthful, it was, obviously puffery and not intended to be taken as
a representation of unimpeachable fact. No action for
misrepresentation could be founded on the basis of such a
statement.
64. The position, however, differed where the statement was not with
respect to the advertised goods, but, rather, the goods of a rival. The
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entitled to much less latitude. Returning to the tailor shop example,
this Court held that “whilst it is open that the tailoring shop to state
that it provides the best tailored suit in the city; it is not open for it to
advertised that the other tailoring shops in the city lacked the
necessary skills and their suits are ill-tailored”.
65. This, it was held that, “in a comparative advertisement, it is open
for an advisor to embellish the qualities of its products and its claim,
but it is not open for him to claim that the goods of his competitors
are bad, undesirable or inferior”. Comparative advertisement would
always involve a statement that the advertised goods are better, in
some aspects, than the goods of the competitors. However, there is a
line which an advertiser cannot cross, on the other side of which lie
disparagement and defamation of the goods of the competitor.
66. It was further held that an advertiser could highlight special
features of its product which might be demonstrably better than
those of a competitor but the attempt, in such a case, had necessarily
to be restricted to highlighting those features, and not to disparaging
or denigrating the product of the rival.
xxx xxx xxx”
(Emphasis Supplied)
53. Delving on the issue of misleading and untruthful speech through the
medium of comparative advertisement, which is a form of commercial
speech, Supreme Court in the case of Tata Press Ltd. Versus Mahanagar
Telephone Nigam Limited and Others7, has held as follows:
“xxx xxx xxx
17. Unlike the First Amendment under the United States Constitution,
our Constitution itself lays down in Article 19(2) the restrictions
which can be imposed on the fundamental right guaranteed under
Article 19(1)(a) of the Constitution. The “commercial speech” which
is deceptive, unfair, misleading and untruthful would be hit by
Article 19(2) of the Constitution and can be regulated/prohibited by
the State.
xxx xxx xxx”
(Emphasis Supplied)
54. Similarly, dealing with the various factors to be considered while
determining the issue of disparagement in comparative advertisement, a
7
(1995) 5 SCC 139
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Division Bench of this Court in the case of Dabur India Ltd. Versus M/s.
Colortek Meghalaya Pvt. Ltd.8, has held as follows:
“xxx xxx xxx
14. On the basis of the law laid down by the Supreme Court, the
guiding principles for us should be the following:–
(i) An advertisement is commercial speech and is protected by
Article 19(1)(a) of the Constitution.
(ii) An advertisement must not be false, misleading, unfair or
deceptive.
(iii) Of course, there would be some grey areas but these need
not necessarily be taken as serious representations of fact but
only as glorifying one’s product.
To this extent, in our opinion, the protection of Article 19(1)(a) of
the Constitution is available. However, if an advertisement extends
beyond the grey areas and becomes a false, misleading, unfair or
deceptive advertisement, it would certainly not have the benefit of
any protection.
15. There is one other decision that we think would give some
guidance and that is Pepsi Co. Inc. v. Hindustan Coca Cola Ltd., 2003
(27) PTC 305 (Del.) (DB). In this decision, a Division Bench of this
Court held that while boasting about one’s product is permissible,
disparaging a rival product is not. The fourth guiding principle for
us, therefore, is: (iv) While glorifying its product, an advertiser may
not denigrate or disparage a rival product. Similarly, in Halsbury’s
Laws of England (Fourth Edition Reissue, Volume 28) it is stated in
paragraph 278 that “[It] is actionable when the words go beyond a
mere puff and constitute untrue statements of fact about a rival’s
product.” This view was followed, amongst others, in Dabur India
Ltd. v. Wipro Limited, Bangalore, 2006 (32) PTC 677 (Del). “[It] is
one thing to say that the defendant’s product is better than that of
the plaintiff and it is another thing to say that the plaintiff’s product
is inferior to that of the defendant.”
16. In Pepsi Co. it was also held that certain factors have to be kept in
mind while deciding the question of disparagement. These factors are:
(i) Intent of the commercial, (ii) Manner of the commercial, and (iii)
Story line of the commercial and the message sought to be conveyed.
While we generally agree with these factors, we would like to amplify
or restate them in the following terms: —
(1) The intent of the advertisement – this can be understood
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2010 SCC OnLine Del 391
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from its story line and the message sought to be conveyed.
(2) The overall effect of the advertisement – does it promote the
advertiser’s product or does it disparage or denigrate a rival
product?
In this context it must be kept in mind that while promoting its
product, the advertiser may, while comparing it with a rival or a
competing product, make an unfavourable comparison but that
might not necessarily affect the story line and message of the
advertised product or have that as its overall effect.
(3) The manner of advertising – is the comparison by and large
truthful or does it falsely denigrate or disparage a rival product?
While truthful disparagement is permissible, untruthful
disparagement is not permissible.
17. In our opinion, it is also important to keep in mind the medium of
the advertisement. An advertisement in the electronic media would
have a far greater impact than an advertisement in the print media.
In D.N. Prasad v. Principal Secretary, 2005 Cri LJ 1901 the Andhra
Pradesh High Court observed that a telecast reaches persons of all
categories, irrespective of age, literacy and their capacity to
understand or withstand. The Court noted that the impact of a
telecast on the society is phenomenal. Similarly, it was observed
in Pepsi Co. that a vast majority of viewers of commercial
advertisements on the electronic media are influenced by visual
advertisements “as these have a far reaching influence on the
psyche of the people ….” Therefore, an advertiser has to virtually
walk on a tight rope while telecasting a commercial and repeatedly
ask himself the questions: Can the commercial be understood to
mean a denigration of the rival product or not? What impact would
the commercial have on the mind of a viewer? No clear-cut answer
can be given to these questions and it is for this reason that this Court
has taken a view that each case has to be decided on its own facts.
(See Reckitt Benckiser (India) Ltd. v. Cavinkare Pvt. Ltd., (2007) II
Delhi 368, paragraph 17). Consequently, this Court has been called
upon to decide the same issue time and time again resulting in the
same and very large number of decisions being cited.
xxx xxx xxx”
(Emphasis Supplied)
55. Considering the aforesaid position of law, the impugned
advertisements, which give the overall message that competitors do not have
the know-how to manufacture Chyawanprash in accordance with the
traditions and ayurvedic texts, and are ordinary, and consumers ought not toSignature Not Verified
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settle for ordinary products, which are not ayurvedic medicines, as they are
not manufactured as per ancient ayurvedic texts, are clearly disparaging in
nature. In the present case, context of the usage of the phrase „ordinary
Chyawanprash‟ is clearly negative. Chyawanprash, which is prepared
strictly in accordance with the ingredients and formulations listed in any of
the ancient ayurvedic texts, as per First Schedule of the Drugs and
Cosmetics Act, would be at par and cannot be denigrated as „ordinary‟.
56. The fact that the plaintiff advertises its products as having 40+
ayurvedic herbs, and the impugned Print Advertisements clearly caution
consumers not to settle for Chyawanprash which has 40 ayurvedic herbs, is
aimed at identifying the plaintiff‟s product. Hence, there is a positive and
unmistakable identification of the plaintiff‟s product in the impugned Print
Advertisements.
57. In this regard, it would be useful to refer to the judgment of this Court
in the case of Dabur India Limited Versus Colgate Palmolive India Ltd.9,
wherein, it has been held in categorical terms that generic disparagement of
a rival product without specifically identifying or pin pointing the rival
product is equally objectionable. Thus, it has been held, as follows:
“xxx xxx xxx
19. I am further of the view that generic disparagement of a rival
product without specifically identifying or pin pointing the rival
product is equally objectionable. Clever advertising can indeed hit a
rival product without specifically referring to it. No one can
disparage a class or genre of a produce within which a complaining
plaintiff falls and raise a defence that the plaintiff has not been
specifically identified. In this context the plaintiff has rightly rejected
the offer of the defendant to drop the container from its advertisement
so as to avoid the averred identification of the plaintiff’s
product………
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20. ………Undeniably it is not the puffing up of the defendant’s
product i.e. the Colgate Tooth powder which can be found
objectionable but the running down of a rival product which is the
situation in the present case.
xxx xxx xxx”
(Emphasis Supplied)
58. Elucidating on the concept of disparagement in advertisements,
specifically in instances wherein the particular rival product is not identified
and entire class of the product is disparaged in general, this Court in the case
of Godrej Sara Lee Ltd. Versus Reckitt Benckiser (I) Ltd.10, has held as
follows:
“xxx xxx xxx
13. I may state at the outset that the cardinal principle is that the
advertiser has right to boast of its technological superiority in
comparison with product of the competitor. He can declare that his
goods are better than that of his competitor. However, while doing
so, he cannot disparage the goods of the competitor. Therefore, if
the advertising is an insinuating campaign against the competitor’s
product such a negative campaigning is not permissible. The
advertiser, therefore, may highlight the positive features of his
product and can even claim that his product is better than his
competitors. Such a statement may be untrue. But while doing so, he
is not permitted to project that his competitor’s goods are bad.
Accepting this cardinal principle, the Calcutta High Court in the case
of Reckitt & Colman of India Ltd. v. M.P. Ramchandran (supra) after
taking note of some English judgments, culled out the following
propositions of law:
“(i) A tradesman is entitled to declare his goods to be best in the
world, even though the declaration is untrue.
(ii) He can also say that his goods are better than his competitors‟,
even though such statement is untrue.
(iii) For the purpose of saying that his goods are the best in the
world or his goods are better than his competitors‟ he can even
compare the advantages of his goods over the goods of others.
(iv) He, however, cannot, while saying that his goods are better
than his competitors’, say that his competitors’ goods are bad.
If he says so, he really slanders the goods of his competitors.
10
2006 SCC OnLine Del 199
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In other words he defames his competitors and their goods,
which is not permissible.
(v) If there is no defamation to the goods or to the manufacture of
such goods no action lies, but if there is such defamation an
action lies and if an action lies for recovery of damages for
defamation, then the Court is also competent to grant an order
of injunction restraining repetition of such defamation.
14. Statement of law in the aforesaid principles is accepted in all the
judgments of this Court. In the judgment of this Court in the case
of Reckitt & Colman of India Ltd. v. Kiwi T.T.K. Ltd. (supra), the
aforesaid principles were specifically restated with approval and the
discussion summed up is as under:
“The settled law on the subject appears to be that a
manufacture is entitled to make a statement that his goods are
the best and also make some statements for puffing of his goods
and the same will not give a cause of action to other traders or
manufacturers of similar goods to institute proceedings as there
is no disparagement or defamation to the goods of the
manufacturer so doing. However, a manufacturers is not
entitled to say that his competitor’s goods are bad so as to puff
and promote his goods. It, however, appears that if an action lies
for defamation an injunction may be granted. It is in this
background that I have to see whether there is any disparagement
or defamation to the goods of the plaintiff in the advertisement in
question.”
xxx xxx xxx
16. What is disparagement and what would constitute a disparaging
message is explained in paras 12 and 13 of the judgment in the
following manner:
“What is disparagement. The New International Webster’s
Comprehensive Dictionary defines disparage/disparagement to
mean, „to speak of slightingly, under value, to bring discredit or
dishonour upon, the act of depreciating, derogation, a condition
of low estimation or valuation, a reproach, disgrace, an unjust
classing or comparison with that which is of less worth, and
degradation.‟ The Concise Oxford Dictionary defines disparage
as under, to bring discredit on, slightingly of and depreciate.”
17. In the electronic media the disparaging message is conveyed to the
viewer by repeatedly showing the commercial everyday thereby
ensuring that the viewers get clear message as the said commercial
leaves an indelible impression in their mind. To decide the question of
disparagement we have to keep the following factors in mind namely
(1) Intent of commercial, (ii) Manner of the commercial, (iii) Story
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line of the commercial and the message sought to be conveyed by the
commercial. Out of the above, „manner of the commercial‟ is very
important. If the manner is ridiculing or the condemning product of
the competitor then it amounts to disparaging but if the manner is
only to shown one’s product better or best without derogating other’s
product than that is not actionable.”
18. The highlight of Dabur India Limited (supra) is that even when a
particular product of the competitor is not disparaged but some
generic product is denigrated, even that would be disparaging. That
was a case where infringing advertisement depicted that
Chayawanprash is not be taken in the summer months and instead
Amritprash is the substitute for it. It was a verbal assertion in the
advertisement by the actor without pointing out at the product of the
plaintiff specifically, namely, Dabur Chayawanprash. It was argued
that Dabur had market share of 63% of the total market of
Chayawanprash throughout India and the impugned advertisement
branding Chayawanprash as a product which is not suitable in
summer amounted to disparaging its product. The Court accepted this
contention and held that even if there be no direct reference to the
product of the plaintiff and only a reference is made to the entire
class of Chayawanprash in its generic sense, still it may amount to
disparagement. It was found that there was insinuation against user
of Chayawanprash during the summer months in the advertisement in
question and it gave rise to the cause of action to Dabur
Chayawanprash for the reason that it is also a Chayawanprash as
against which disparagement is made.
xxx xxx xxx”
(Emphasis Supplied)
59. Further, from the perspective of the consumer, reading the impugned
Print Advertisements, the meaning conveyed is that the plaintiff‟s
Chyawanprash, which contains 40 ayurvedic herbs is ordinary, and therefore
not a classical ayurvedic medicine. The consumers ought not to settle for
ordinary, when the defendants‟ Chyawanprash, manufactured truly as per
ancient ayurvedic texts, stated to contain 51 ayurvedic herbs/ingredients, is
available. As noted above, Section 3(a) of the Drugs and Cosmetics Act
defines ayurvedic medicine and in terms thereof, all ayurvedic medicines
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authoritative books of ayurvedic systems of medicine, specified in the First
Schedule of the Drugs and Cosmetics Act. Thus, any ayurvedic medicine,
including Chyawanprash, which is manufactured as per the ingredients and
formulae set out in the authoritative books listed in the First Schedule of the
Drugs and Cosmetics Act, cannot be stated to be inferior or ordinary in
comparison to another ayurvedic medicine, by adopting the ingredients and
formulae listed in another authoritative Ayurveda book, listed in the First
Schedule. The intent and overall effect of the impugned advertisements are
to negatively portray other Chyawanprash in the market, including,
plaintiff‟s „Dabur Chyawanprash‟ and to denigrate the entire category as
ordinary, by conveying the message that they are not prepared as per correct
ayurvedic texts, and are therefore, inferior or sub-standard.
60. Thus, to convey a message through the impugned advertisements, that
only Patanjali follows the tradition established by great sages, is incorrect
and disparages the entire class of Chyawanprash in general. If manufacturers
follow the ayurvedic books strictly, as enlisted in Schedule I of the Drugs
and Cosmetics Act, only then, the said product is licenced as Chyawanprash
in terms of Section 3(a) of the Drugs and Cosmetics Act. Thus, the plaintiff
and other manufacturers of Chyawanprash, who manufacture the same in
accordance with the ingredients and formulae prescribed in the authoritative
books of ayurvedic systems and medicines, follow the ayurvedic traditions.
Just because the plaintiff follows a different ayurvedic text book from the
one followed by the defendants does not make the product of the plaintiff or
other manufacturers of Chyawanprash following other Ayurveda text books
as enlisted, as ordinary and not as per the ayurvedic traditions/scriptures.
61. It is manifest that anybody who manufactures an ayurvedic drug by
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following the statute and the scriptures as enlisted in the statute, cannot be
denigrated as ordinary, when the statute considers it to be as good and
permissible ayurvedic drug, i.e., Chyawanprash in the present case.
Therefore, the defendants cannot rubbish the plaintiff or other
manufacturers, who manufacture Chyawanprash strictly as per the enlisted
ayurvedic scriptures, as ordinary.
62. Further, as long as the plaintiff or any other manufacturer of
Chyawanprash, has a drug license and manufactures as per the Ayurveda
books as detailed in the Drugs and Cosmetics Act, they cannot be said to not
have knowledge of Ayurveda. This is clearly a false statement, and does not
fall within puffery. Acclamation of one‟s products and even stating that they
are better than those of the rival is not actionable. However, false
representation as to the quality or character of the competitor‟s products
would fall in the category of disparagement.
63. Further, this Court cannot ignore the diverse and widespread
viewership of television channels and electronic media. Electronic
advertisements have a larger audience pool and a deeper impact on the
viewers, affecting their choices and preferences. Therefore, while dealing
with cases of electronic advertisements, Courts have to be mindful of the
overall message which an advertisement seeks to communicate. In this
context, it would be useful to refer to the judgment in the case of
Glaxosmithkline Consumer Healthcare Ltd. Versus Heinz India (P) Ltd.11,
wherein, it has been held as follows:
“xxx xxx xxx
27. This Court is conscious of the powerful and lasting impact that
audio visual images have on viewers. Unlike the printed word, which11
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is processed analyzed, and assimilated uniquely by each individual,
an advertisement in the electronic media, particularly, has a
different impact. First, it has a wider spread; it is perceived aurally
through different senses, such as sound, visual, and printed. The
suggestive power of this medium is greater. Second, such
advertisements use several different tools, like music, dialogue,
colors, and other aids, to bring home the message. Advertisements
through this medium can, and do operate at conscious and
subconscious levels; their power of suggestion extends not just to the
discerning, or educated viewer, but to an entire range of viewership,
with diverse income earning capacities, educational attainments,
tastes, and so on. They influence even children. The impact of a
catchy phrase, a well acted skit or story line, or even distinctive
sounds or distinctive collocation of colors, can well define the brand
or product’s image, by imprinting it in the public memory
forever………
xxx xxx xxx”
(Emphasis Supplied)
64. Furthermore, the test of an advertisement constituting disparagement
has to be seen from the point of view of an ordinary reasonable man, i.e.,
what would be the impact/impression of the advertisement on said
reasonable and ordinary person of average intelligence. In this regard,
Division Bench of this Court in the case of Colgate Palmolive Company
and Anr. Versus Hindustan Unilever Ltd.12, has held as follows:
“xxx xxx xxx
38. Our attention was drawn to paragraph 19 of the aforesaid
judgment in Tesla Motors (supra) which reads as under: –
“19. It was common ground that the judge applied the correct
principles for the purposes of determining what meanings relating
to the Roadster’s range the programme was capable of bearing.
They were derived from Skuse v. Granada TV [1996] EMLR 278
and Jeynes v. News Magazines Ltd. [2008] EWCA Civ 130
(unreported) and are summarised as follows in paragraph [10] of
his judgment:
“(1) The court should give to the material complained of the
natural and ordinary meaning which it would have conveyed
to the ordinary reasonable reader reading the article or12
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viewing the programme once.
(2) The hypothetical reasonable reader (viewer) is not naïve
but he is not unduly suspicious. He can read between the lines.
He can read in an implication more readily than a lawyer and
may indulge in a certain amount of loose thinking. But he
must be treated as being a man who is not avid for scandal and
someone who does not, and should not, select one bad
meaning where other non-defamatory meanings are available.
(Emphasis added.)
(3) While limiting its attention to what the defendant has
actually said or written the court should be cautious of an over-
elaborate analysis of the material in issue.
(4) The reasonable reader does not give a newspaper item the
analytical attention of a lawyer to the meaning of a document,
an auditor to the interpretation of accounts, or an academic to
the content of a learned article.
(5) In deciding what impression the material complained of
would have been likely to have on the hypothetical reasonable
reader the court is entitled (if not bound) to have regard to the
impression it made on them.
(6) The court should not be too literal in its approach.
The above list was broadly followed by the Court of Appeal
in Jeynes v. News Magazines Ltd. [2008] EWCA Civ 130 at [14],
save that it added the important point that the hypothetical reader
is taken to be representative of those who would read the
publication in question.”
39. We do not think that there is any quarrel with the principles as
enunciated in the above referred passage from the decision in Tesla
Motors (supra). While determining as to how average men view an
advertisement, it cannot be assumed that the average men tend to
choose a derogatory meaning where other simple non-disparaging
meanings are available. However, in cases where the advertisement
presents an impression which any reasonable person could perceive
as being derogatory or defamatory or disparaging, the
goods/services of another person then certainly it would not be
reasonable to discard that view only because certain other meanings
are also possible. The aid to the multiple meaning rule must be taken
only in such circumstances where two plausible meanings are possible
and it is probable that certain viewers (readers) would adopt a view
which is disparaging. In the present case, it is not necessary for us to
delve into these contentions much further as, in our view, the facts of
the present case do not suggest the dilemma of two divergent plausible
views.
xxx xxx xxx”
(Emphasis Supplied)
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65. Similarly, elucidating on the aspect of a reasonable man, from whose
point of view the advertisement is to be assessed, this Court in the case of
Reckitt Benckiser (India) Pvt. Limited and Another Versus Wipro
Enterprises (P) Limited (supra), has held as follows:
“xxx xxx xxx
111. The overall legal position that emerges from these decisions is,
therefore, the following:
xxx xxx xxx
(x) The reasonable man, from whose point of view the
advertisement is to be assessed, is a right thinking member of the
general public, and not a member of any particular class or
section. He
(a) is not naive,
(b) can read between the lines,
(c) can read in implication into the advertisement,
(d) may indulge in some amount of loose thinking,
(e) is not avid for scandal and
(f) does not select a derogatory, or bad, meaning to be attributed
to an advertisement where alternative, non-derogatory meanings
are also available.
xxx xxx xxx”
(Emphasis Supplied)
66. It is to be noted that the advertisements in question pertain to an
ayurvedic drug, i.e., Chyawanprash. Hence, to an average person who
watches the impugned TVC, where Mr. Ramdev, an acknowledged yoga and
vedic expert, declares that only the defendants possess the knowledge of
ayurvedic texts to prepare original Chyawanprash, they would obviously be
influenced by such statements and believe them to be true, and discard other
Chyawanprash. While assessing the overall impact of the impugned TVC on
the audience, other factors, such as the person endorsing the advertiser‟s
product, etc., also need to be taken into account. Therefore, the impugned
TVC, in its manner of presentation as well as intent, seeks to disparage the
entire class of Chyawanprash.
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67. Thus, as noted above, the Print Advertisements are an instance of
specific disparagement of plaintiff‟s product, whereas, the TVC is an
instance of generic disparagement with respect to entire class of
Chyawanprash in the market.
68. A number of judgments have been relied upon by both the parties
during the course of arguments and in their written submissions. The
judgments as relied upon by the defendants are clearly distinguishable. It is
further to be noted that the judgments cited by the defendants pertain to non-
medicinal products.
69.1 As regards the judgment in the case of Havells India Ltd. & Anr.
Versus Amritanshu Khaitan & Ors.13, the said case pertained to LED bulbs.
In the said case, the lumens in the defendant‟s bulb was higher, hence,
comparison was upheld. However, the number of ingredients is not the
determinative factor in respect of Chyawanprash, a classical ayurvedic
medicine. Chyawanprash, if prepared as per the formulation and ingredients
specified in one of the ayurvedic texts, listed in the First Schedule of the
Drugs and Cosmetics Act, would be Chyawanprash. Mere presence of
additional ingredients in „Patanjali Special Chyawanprash‟, does not make it
superior to other Chyawanprash, which are also prepared as per the
ayurvedic texts. Other Chyawanprash in the market do not cease to be
classical ayurvedic medicines because of lesser number of ingredients, or are
liable to be shunned/ rejected, as communicated in the impugned
advertisements by defendants.
69.2 The following principles emerge from the aforesaid judgment:
I. Comparative advertising is any advertising which explicitly or by
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implication, identifies a competitor or goods or services offered by a
competitor.
II. Comparison made should be factual, accurate and capable of
substantiation.
III. Advertisement should not unfairly denigrate, attack or discredit any
other products, advertisers or advertisements directly, or by implication.
IV. Statements of comparison with competitor‟s products should not be
defamatory or libelous or confusing or misleading.
V. Competitors can certainly compare, but cannot mislead.
VI. For any advertisement to be considered misleading, two essential
elements must be satisfied. First, misleading advertising must deceive the
persons to whom it is addressed or at least, must have the potential to
deceive them. Secondly, as a consequence of its deceptive nature,
misleading advertising must be likely to affect the economic behavior of the
public to whom it is addressed or harm a competitor of the advertiser.
69.3 Considering the present case on the anvil of the aforesaid principles,
the present case is clearly that of disparagement.
70.1 In the case of Zydus Wellness Products Ltd. Versus Dabur India
Limited14, the product was orange drink/ glucose powdered drink. In the said
case, the Court held that it could not specifically find whether the orange
drink shown in the advertisement was powdered glucose or orange fruit
juice or orange soft drink. However, in the present case, the product
category is unmistakable, i.e., Chyawanprash. The product Chyawanprash is
clearly stated and identified in the impugned TVC and Print Advertisements.
70.2 The aforesaid case is a case of comparative advertising in a television14
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commercial. In the present case, the impugned TVC is a case of generic
disparagement.
70.3 Further, in the aforesaid case, upon examination, the Court found that
the claims made in the advertisement were truthful.
70.4 The following principles emerge from the aforesaid judgment:
I. There must be express or implied reference to a competitor or its
goods or a product category.
II. Untruthful disparagement is not permissible.
III. An objection can be raised where the representations being made are
absolutely false or misleading.
70.5 Considering the principles as above, the aforesaid case is clearly
distinguishable and does not apply to the facts and circumstances of the
present case.
71.1 The case of Reckitt Benckiser (India) Pvt. Limited and Another
Versus Wipro Enterprises (P) Limited15, relied upon by the defendants, is
again distinguishable. The said case is a case of comparative advertising in a
television commercial, while the instant case is a case of generic
disparagement by way of the impugned TVC.
71.2 The following principles emerge from the aforesaid judgment:
I. Ordinary means usual, normal, or of no special quality. Sometimes,
the word ordinary is used in a negative way to mean somewhat inferior,
below average, or just plain – in much the same way as the word mediocre.
II. The latitude of free commercial speech guaranteed by Article 19(1)(a)
of the Constitution of India cannot be extended to misrepresentations.
III. Representations of fact, if they are untrue, are impermissible.
15
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IV. While it is open for a competitor to state that best services are offered
by them, it is not open for the competitor to advertise that other competitors
in the market lack necessary skills/knowledge/know-how.
V. Even if the rival product was not specifically targeted, an indirect
representation, which was sufficient to identify the product, was as good as
direct targeting.
VI. An advertisement must not be false, misleading, unfair or deceptive,
irrespective of whether it is extolling the advertised product or criticizing its
rivals. Misrepresentation and untruth in advertisements is impermissible.
VII. An advertisement must be honest, accurate and true, and cannot
convey an overall misleading message, from the standpoint of the customer.
VIII. While it is permissible to state that the advertised product is superior
to the competitor‟s, it is not permissible to attribute this superiority to some
failing, or fault, in the product of the competitor. An advertisement cannot
claim that a competitor‟s goods are bad, undesirable or inferior. The subtle
distinction between claiming one‟s goods to be superior to the others‟, and
the others‟ goods to be inferior to one‟s own, has to be borne in mind.
71.3 Considering the principles as laid down in the aforesaid case, a clear
case of disparagement is made out in the present case.
72.1 In the case of Dabur India Ltd. Versus M/s. Colortek Meghalaya
Pvt. Ltd.16, as relied upon by the defendants, the product is mosquito
repellant cream. The said case is again distinguishable, as it was held in
categorical terms that the advertisement in question did not, either overtly or
covertly, denigrate or disparage the product of the appellant therein.
72.2 The principles that emerge from the said judgment are as follows:
16
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I. An advertisement must not be false, misleading, unfair or deceptive.
II. If an advertisement extends beyond the grey areas and becomes false,
misleading, unfair or deceptive, it will not have the benefit of any protection
under Article 19(1)(a) of the Constitution of India.
72.3 Considering the principles as laid in the aforesaid judgment, the fact
of disparagement in the present case is clearly established.
73. The case of Marico Limited Versus Adani Wilmar Ltd.17, as relied by
the defendants, is again distinguishable. The product in the said case was
cooking oil. The Court held that no part of the advertisement was
disparaging of the plaintiff‟s products. Neither did the advertisement state
that the plaintiff‟s products were bad. However, the position is totally
different in the present case.
74.1 Similarly, the case of Philips India Pvt. Ltd. Versus Shree Sant
Kripa Appliances Pvt. Ltd.18, relied upon by the defendants is
distinguishable. The said judgment dealt with the product namely, CFL
bulbs. The Court held that the fact that the defendant therein sought to extol
the virtues of LED bulbs over CFL bulbs was clear, however, the same was
not done with a malicious intent to injure plaintiff‟s product.
74.2 The following principles emerge from the aforesaid judgment:
I. For an action of malicious falsehood, the plaintiff must prove that the
impugned statement/representation is untrue, and that the same is made
maliciously, without just cause or excuse.
II. An entity cannot indulge in commercial free speech which tends to
maliciously injure a rival/competitor.
17
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75. Considering the aforesaid principles and detailed discussion in the
preceding paragraphs, that as the product in question is an ASU drug which
is regulated under the Drugs and Cosmetics Act, the issue of disparagement
has to be examined at a stricter threshold, a strong prima facie case of
disparagement is apparent in both forms of advertisements, i.e., TVC and
Print.
76. The submissions made on behalf of the defendants that interim relief
can only be in aid of final relief, and that the final relief cannot be granted
by way of interim relief, is an established principle of law. However, this
Court has the authority to pass interim orders when prima facie case is
established, along with other factors like balance of convenience and
irreparable damage. The injunction prayed by way of the present
applications is interim in nature. On the other hand, the final prayer in the
suit pertains to permanent injunction, which is different from the interim
injunction as sought by way of the present applications.
77. This Court further takes into account that the remedy of injunction has
a larger role to play in matters of defamation or disparagement as pecuniary
compensation cannot be enough to compensate such defamation. Thus, a
Division Bench of the Madras High Court in the case of Gillette India
Limited Versus Reckitt Benckiser (India) Private Limited19, has held as
under:
“xxx xxx xxx
103. In granting interim relief of injunction, the Court is required to
examine whether the plaintiff has made out a strong prima facie
case, whether pecuniary compensation would afford the plaintiff
applicant for injunction adequate relief and whether the balance of
convenience is in favour of passing of an interim order in favour of19
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the plaintiff applicant.
104. In judging the balance of convenience, the Court would have to
weigh the competing interest of the applicant for injunction and the
party opposing injunction and address to itself the question of who
would suffer greater prejudice – the plaintiff applicant for injunction
by refusal of injunction, if the proceedings ultimately succeeded, or
the respondent by grant of injunction, if the suit ultimately failed.
105. If in a suit for disparagement in relation to an advertisement a
strong prima facie case of disparagement is made out, injunction
would necessarily have to be granted, for pecuniary compensation
could never compensate defamation and/or disparagement. By grant
of injunction, the opposite party would only be restrained from
disparaging the applicant for injunction till a final decision was
taken by the Court. The prejudice to the applicant for injunction by
continuous exhibition of disparaging advertisements would be
irreparable, and far greater than the prejudice to the opposite party,
if the applicant ultimately succeeded.
xxx xxx xxx”
(Emphasis Supplied)
78. Considering the aforesaid detailed discussion, the plaintiff has
established a strong prima facie case in its favour. Balance of convenience
also lies in favour of the plaintiff and against the defendants. Further, the
plaintiff shall suffer irreparable loss, including loss of reputation, if interim
relief, as prayed in the present applications, is not granted.
79. In view of the discussion hereinabove, this Court directs that from the
Print Advertisements, the defendants shall delete the first two lines, i.e.,
„Why settle for ordinary Chyawanprash made with 40 herbs?‟. The
defendants can accordingly modify the impugned Print Advertisements in
both Hindi and English languages.
80. Similarly, as regards the impugned TVC, the defendants are directed
to delete the lines as given in the first three columns of the table showing the
story board of the impugned TVC, i.e., „Jinko Ayurved or Vedon ka gyaan
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Anuroop, original Chyawanprash kaise bana payenge‟. Similarly, the
defendants are directed to delete the lines as given in the last column of the
table showing the story board of the impugned TVC, „Toh ordinary
Chyawanprash kyu‟, from their TVC.
81. The defendants shall be allowed to run the impugned Print
Advertisements and TVC after the aforesaid modifications.
82. The other issues, as raised before this Court with regard to use of the
word „special‟, communication regarding „51 precious herbs‟, presence of
„mercury‟ in defendants‟ product, and other claims made by the defendants
in their impugned Print Advertisements and TVC, are subject matter of trial
in the suit.
83. It is clarified that the observations made herein pertain to adjudication
of the interim applications only. Nothing contained herein shall be construed
as final expression on the merits of the case.
84. Accordingly, the defendants are restrained from publishing the
impugned Print Advertisements and airing the impugned TVC.
85. With the aforesaid directions, the present applications are accordingly
disposed of.
(MINI PUSHKARNA)
JUDGE
JULY 03, 2025
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