Comparative Advertising III


The TV commercial identifies ‘orange glucose’ as ‘product category’. But, is it disparaging in nature? Disparagement is an act of belittling someone’s goods or services with a misleading remark. The TV Commercial does not disparage any ‘orange glucose’ drink. Disparagement cannot be a far-fetched inference. It would not be proper for Court to conclude ‘mine is better’ as ‘yours is bad’.

In depicting superiority, a generic comparison ought to be permitted and creativity cannot be stifled. A TV Commercial is not to be analyzed in a hyper critical manner. Reckitt Benckiser (India) Pvt. Ltd. v. Hindustan Unilever Limited, FAO(OS) (COMM) 149/2021 decided on 26.09.2022, is clearly distinguishable. There is no direct comparison with Plaintiff’s product; no image of Plaintiff’s product has been used; only features of Defendant’s product are highlighted. There cannot be a presumption, Plaintiff’s product is being targeted.

The prayer for interim injunction is not liable to be granted.

Hon’ble Justice Prathiba M. Singh of Hon’ble High Court of Delhi,  Zydus Wellness Products Ltd. v. Dabur India Limited, [CS(COMM) 304/2022] decided on 23.12.2022.