Dabur India Limited Vs.Emami Limited
2004 (29) PTC 1 (Del)
Plaintiff was the manufacturer of Dabur Chayawanprash. Plaintiff had a market share of 63% of the total market of Chayawanprash in India.
Defendant was also engaged in the manufacture of various ayurvedic formulations including Chayawanprash. Defendant was manufacturing the said Chayawanprash under the brand name Himani Sona-Chandi Chayawanprash. The Defendant had introduced a new product in the market by the name of Himani Sona-Chandi Amritprash and the same was being advertised on the audio visual media.
The bone of contention of the Plaintiff was a commercial of Himani Sona-Chandi Amritprash. The said T.V commercial starred film star Sunny Deol. The commercial showed the hero carrying a bottle of Himani Sona-Chandi Amritprash. Towards the end of the commercial the hero states “Garmion mein Chayawanprash Bhool Jao, Himani Sona-Chandi Amritprash Khao.”
Plaintiff submitted that the aforesaid advertisement was deceptive and a malafide attempt to do negative campaigning against the product of the plaintiff.
Defendant itself is manufacturing and marketing Chayawanprash, which is to be used in the winter months and not in the summer months.
‘Chyawanprash’ is a generic word and there is no exclusivity which could be claimed in the said word.
The single judge relied on RECKITT & COLMAN OF INDIA LTD. VS. KIWI T.T.K. LIMITED; 1996 (16) PTC 393 and observed 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 but the same would 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 manufacturer is not entitled to say that his competitor’s goods are bad so as to puff and promote his goods.”
Plaintiff has a market share of 63% of Chayawanprash. Thus, Plaintiff would be interested in seeing that Chayawanprash is sold through India during all the seasons. If, the said product is sold and marketed only for a few months and not throughout the year the business of the Plaintiff is going to be affected. Defendant has a market share of about 12% Chayawanprash throughout India whereas in the market of Amritprash, there is no other competitor in the market. Therefore, Defendant seeks to forbid and exclude user of Chayawanprash during the summer months so that it can exclusively capture the Indian market during the summer months. The Defendant is attempting to induce an unwary consumer into believing that Chayawanprash should not be taken in summer months at all and Amritprash is the substitute for it. The aforesaid effort on the part of the Defendant would be definitely a disparagement of the product Chayawanprash and even in generic term the same would adversely affect the product of the Plaintiff. Even if there is 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, even in those circumstances disparagement is possible.