Advertisers have freedom to make ads with generic comparison, without direct reference to competitors: Delhi High Court

The Delhi High Court recently held that it is permissible for an advertiser to make advertisements containing a ‘generic comparison’ with the product of a related or same category without any direct reference to any competitor [Zydus Wellness Products Ltd v. Dabur India Limited]..Justice Prathiba M Singh said that in order to portray a particular product as being superior or better than existing products, a generic comparison highlighting the strength of the product without launching a negative campaign against its competitors ought to be permissible.Failing this, the strength of the advertisement could itself be considerably diluted, the Court said.“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 held..Justice Singh made the observation while dealing with a suit filed by Zydus Wellness Products against Dabur India. Zydus moved court to restrain Dabur from airing two commercials for promotion of its product called Dabur Glucoplus-C Orange because it disparaged Zydus’ glucose powder named Glucon-D.The commercials were aired on a Bengali news channel and showed two girls competing in a race. While one of them drank Glucoplus-C Orange, the other drank an orange glucose powder drink. The Dabur girl was shown finishing the race first..Zydus alleged that the commercial denigrated all other orange glucose powder drinks as the commercial gives the impression that they are entirely inefficacious in providing energy and that only the Dabur product is capable of providing energy..After examining the advertisements, the Court concluded that the commercial in question only highlights the qualities of Dabur’s product and does not disparage any orange glucose powder drink.“The comparison being made in the impugned TVC might be unfavourable to the Plaintiff, but it cannot be held to be disparaging. The intent and the overall effect of the advertisement in question seems to be to promote the Defendant’s product and not to denigrate the Plaintiff’s or any other manufacturer’s product.”.Justice Singh also rejected the argument that there is a serious misrepresentation of fact. It noted that it was an admitted position that Dabur’s product has 25% more glucose than Zydus' product, and therefore, the advertisement is by and large truthful and there is no falsity involved.“The argument of the Plaintiff that more glucose does not translate into higher energy also does not hold ground for two reasons. First, the storyboard of the advertisement merely shows “25% more glucose in every sip. This is not misrepresentative considering the contents of the Defendant’s drink. Second, as far as the claims of ‘instant energy’ is concerned, the Plaintiff’s own product packaging, and its advertisements which have been placed on record, show that the Plaintiff’s own stand is that glucose gives instant energy. The Plaintiff cannot take a different stand for its own product and Defendant’s product.”.The Court, therefore, rejected Zydus’ plea for interim injunction..Senior Advocate Chander Lall along with Advocates Sagar Chandra, Shubhie Wahi, Sanya Kapoor, Ananya Chug and Ankita Seth appeared for Zydus.Senior Advocate Rajiv Nayar along with Advocates Anirudh Bhakru, Prabhu Tandon, Saurabh Seth and Kripa Pandit appeared for Dabur. .[Read Judgment]