Bombay High Court on ambit of injunctions in the context of disparaging advertisements

On 13 December 2018, the High Court of Bombay passed a judgment, on appeal from the Single Judge, in Gujarat Co-operative Milk Marketing Federation Limited v. Hindustan Unilever Limited dealing with the competitive ambit of television commercials. The Single Judge, by the impugned Order, imposed a wide injunction against the Appellant from telecasting the impugned commercials and any other advertisement of a similar nature, and from actively disparaging and denigrating the Respondent/Plaintiff’s products. Facts of the case The Respondent/Plaintiff filed the Suit with a prayer to restrain the Appellant/Defendant from telecasting two television commercials. It was the case of the Respondent/Plaintiff that, in the commercials, it was portrayed that all ‘frozen desserts’ are produced using ‘vanaspati’, a term commonly associated in Indian households with hydrogenated and unhealthy vegetable oil, as against the icecreams produced and sold by the Appellant/Defendant using 100% milk. Arguments Further, the Court must apply the test of an ordinary man with reasonable intelligence, and that the commercial should not be analysed at length to conclude whether it amounted to disparagement or not. The Appellant/Defendant did not refer to the product of the Respondent/Plaintiff and there arose no cause of action for a suit on grounds of generic disparagement. Finally, the statements made were true facts which amounted to educating consumers, and in any case, the broad and blanket injunction against any “similar” commercial would lead to plethora of cases by competitors against the Appellant/Defendant. The Respondent/Plaintiff, on the other hand, argued that the commercials must be viewed in their entirety, and any advertisement carrying messages disparaging the product of competitors would not be permissible in law. The use of a word, which in common parlance has negative connotations, would amount to disparagement. Finding of the Court The Court perused several judgments of the Supreme Court and of various High Courts regarding the nature of competition permitted in television commercials. The Court mainly noted that parties cannot be permitted to, in the guise of puffing their own products, directly or indirectly, contend that the product of another trader is inferior. In deciding the question of disparagement, one must look at the intent of the commercial, the manner of the commercial and the storyline and message sought to be conveyed by the commercial. In the current case, the Appellant/Defendant admitted that only 30% of manufacturers of ‘frozen desserts’ used vanaspati, and further admitted that the same is unhealthy. Thus, the Court found that the action of the Appellant/Defendant to portray that all ‘frozen desserts’ are made using vanaspati is false to knowledge of the Appellant/Defendant, and intended to show that the same are dangerous to health. Thus, the commercials have an effect of disparaging ‘frozen desserts’ in general, and dissuading class of consumers from using it. The Court, however, only partly allowed the Appeal to the extent that the injunction granted by the Single Judge was broad and unwarranted. The Court limited the injunction only to portions of the commercials that disparaged ‘frozen desserts’ and such similar advertisements. Download Pdf