HORLICKS Vs COMPLAN: Comparative Advertisement
HORLICKS LIMITED & ANR. Vs. ZYDUS WELLNESS PRODUCTS LIMITED CS(COMM) 464/2019 Delhi HC
FACTS:
- The plaintiffs is a renowned corporations and adopted the trademark HORLICKS in the year 1943 which is registered in its favour in various classes.
- Plaintiffs’ product HORLICKS is being sold in many countries around the world in different formulation in order to cater the needs of the varying consumers and its drink HORLICKS is seen as a complete health drink amongst the consumers.
- The defendant is a company incorporated in India and as a competitor of the plaintiffs’ is manufacturing and selling a nutritional drink under the trademark COMPLAN.
- Also, There have been frivolous litigations between the parties with regard to the advertisements relating to the products HORLICKS and COMPLAN before various forums.
Dispute between Horlicks and Complan related to advertisement in News Paper previously:
The plaintiff had earlier filed a suit being before the Single bench of Delhi HC when the defendant had brought out an advertisement in the print media which the plaintiffs herein claim to be disparaging and an ad-interim ex-parte injunction was granted, however, the said interim injunction was vacated by this Court after the revised advertisement of the defendant in which comparison was made on the each serve size. And therefore disclaimer was provided by the defendant (Complan).
PLAINTIFF’s ARGUMENT:
- Plaintiffs contends that the television is a very powerful medium of communication and the same cannot be compared with the print media (Ex: News Paper, Magazines etc.).
- Internationally and nationally comparison between the product is in the same size or the same measurement and a comparison other than of the same size would be misleading. Despite the fact that the serve size of the plaintiffs and defendant is different, the cup size in the advertisement is made the same thereby creating confusion in the mind of the customers. Thus the TVC advertisement is not true and gives a misleading message to the public in general.
ISSUE
The main grievance of the plaintiff in respect of the advertisement in the electronic medium is that the TV Commercial is for six seconds and the voiceover does not clarify the disclaimer added in the print advertisement, that is, as per on pack recommended serve size (COMPLAN 33g. HORLICKS 27g)‟ and six second is too less a time for anyone to be able to notice this disclaimer on the TV Commercial.
TV Commercial was as follow:
Frame 1: “Did you know?”
Frame 2: “One cup of Complan has the same amount of protein as two cups of Horlicks.”
Frame 3: “From Now on only Complan” (6 Seconds only)
Disclaimers: One Cup of Complan [33g] gives 5.94 g of protein while two cups of Horlicks [27 x 2=54g] give 5.94g of protein basis on-Pack recommended serving size.
JUDGMENT
Cases Referred by HC:
The Court noted that 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. The Court refered D.N. Prasad v. Principal Secretary [1] in which 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.
Also, the court referred to the case of Division Bench of High Court of Madras in Gillette India Ltd. (supra) besides laying down the principles to ascertain whether an advertisement is disparaging or not, also noted the distinction between an advertisement in the electronic audio visual media and the print media. It was held that the advertisement in the electronic audio visual media leaves an impression in the minds of the viewer and has a far greater impact.
Court Held that:
- The Delhi HC held that on playing the TV Commercial, there is no voiceover with regard to the disclaimer in reference to the serve size nor is the time sufficient to read the said disclaimer. In view of this fact the present advertisement in the electronic media would be clearly disparaging as on a bare looking at the advertisement a viewer only sees a comparison of one cup of COMPLAN with two cups of HORLICKS with no reference to the serve size.
- The Court also noted that the electronic medium is a very powerful medium of communication and leaves an indelible mark on the mind of the viewer. Therefore, Court finds that the plaintiffs (HORLICKS) have made out a prima face case in their favour and in case no interim injunction is granted the plaintiffs would suffer an irreparable loss.
COMPARATIVE ADVERTISMENT CASE LAWS
Dabur India vs. Colortek Meghalaya Pvt. Ltd. and Ors.[2] & Havells India Ltd. vs. Amritanshu Khaitan & Ors. [3]
The Court said that though a comparative advertisement is legal and permissible however, the comparison cannot be false as the same has the likelihood of causing confusion in the mind of the consumer who may be mislead.
References
1. MANU/AP/0050/2005:2005 Cri LJ 1901
2. 167 (2010) DLT 278
3. 2015 (62) PTC 64 (Del)
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