Delhi High Court refuses to issue interim injunction on Dabur glucose drink commercial

New Delhi, December 28, 2022:

A single bench of Delhi High Court refused to issue an interim injunction against Dabur India Ltd's video advertisement for its orange flavoured glucose drink in a petition filed by the market leader Zydus Wellness Products, observing that the an advertiser have the freedom to make advertisements with generic comparison highlighting the features of its own product and if the same is done without an allusion to any market leader.

The matter came for argument in the Delhi High Court after Zydus Wellness filed a suit seeking permanent injunction restraining Dabur India's allegedly disparaging, misrepresenting advertisement for its product DaburGlucoplus-C Orange, which according to the company, has resulted in unfair competition.

The alleged Television Commercial depicted two mothers, one feeding her daughter with Glucon-C Orange while the other having a generic orange drink in a glass container before a 100 meter race. The girl who drinks Dabur's product wins the race while the other was depicted to be weak and less energetic even before the race. To a question on why the girl who had Dabur's glucose drink had more energy while the other was weak, the former's mother mentions that her daughter drinks DaburGluco Plus-C and it is not the same with the other drink. The advertisement also claims that Dabur's product has 25% more glucose in every sip.

Zydus approached the Court alleging that while its product has not beed represented in the advertisement, it is market leader with 74% market share in the orange glucose energy drink segment and the advertisement is a generic disparagement of the entire product category which would impact Zydus' product. It argued that the advertisement is misleading, since 25% more glucose does not translate to 25% more energy and there is no factual basis for the said claim.

Dabur refuted the allegations and argued that there is no reference to any other competing product, and hence there cannot be any denigration of Zydus' product. It added that the advertisement is factually correct and not misleading and Zydus is trying to crush competition through the petition.

Analysing the arguments from both the sides, Justice Prathiba M Singh opined that cases where there is a direct comparison and denigration of the competitor’s product would fall in a completely different category as against those cases where there are allusions or indirect references.

"Allegations of disparagement in cases where comparison is alleged with an unrelated category as a whole is also objectionable. However, in the case of generic comparison with a product of related/same category without any direct reference to any competitor, the freedom for advertisers would be greater than those cases falling in other categories. This is because in order to portray a particular product as being superior or better than existing products, a generic comparison highlighting the strength of its own product without launching a negative campaign against its competitors ought to be permissible, failing which the strength of the advertisement could itself be considerably diluted," said the Court.

"The purpose of advertising any product is for marketing the attributes of that product. Such attributes could be unilateral or relative in a generic manner. It cannot be said that every generic comparison would be referencing the market leader which would, in the opinion of the Court, be curtailing freedom of advertising to a considerable extent. Mere allusions, in the absence of a decipherable comparison would not be sufficient to make out a case of generic disparagement. An advertiser ought to have the freedom to make advertisements with generic comparison highlighting the features of its own product and if the same is done without an allusion to any market leader, objection cannot be raised unless representation being made is absolutely false or misleading," it added.

The Court concluded its order stating, "While deciding a disparagement suit, the overall impact of the commercial has to be considered and in the absence of any derogatory remarks, mere use of some expressions cannot lead to an injunction. Under these facts and circumstances, the prayer for interim injunction is not liable to be granted".

Zydus, which acquired the brand Glucon-D through the merger of Heinz India Pvt Ltd in the year 2019, claimed that it is the leader in the glucose powder segment in India with a market share of 58 per cent for the year 2021. Glucon-D Tangy Orange, one of its products, is the market leader in the orange glucose power drink category with market share of 72 per cent for the period between April, 2021 and March, 2022 and 74 per cent for the period between January, 2022 till March, 2022 in the category.

Glucon-D sales were to the tune of Rs. 535 crore in the year 2018 and the Glucon-D Tangy Orange flavour variant reported sales figures of Rs. 231 crore during the said period, informed the company at the Court.Pharmabiz