Only Puffery, No Reference Made To Dabur's Product: Patanjali Defends Chyavanprash Ad Before Delhi HC In Dabur's Trademark Infringement Suit

Resisting Dabur India's fresh injunction application alleging disparaging of its products by Patanjali Ayurveda, the Ramdev Baba led Indian multinational conglomerate on Tuesday told the Delhi High Court that its ad is a mere 'puffery' claiming that Patanjali Chyavanprash is the best product in the market and that no reference has been made to Dabur.

"All this ad says is that I am better than everybody. There is no reference to plaintiff at all. There is no comparison of qualities of two products. Complete puffery where I say I am better than others and in law, I am entitled to say so as long as I don't show competitor's goods in a bad manner," Senior Advocate Rajiv Nayar appearing for the company orally submitted.

Hearing the matter, Justice Mini Pushkarna was also shown the ad clipping in open Court.

Heavy reliance was placed on the judgment of the Delhi High Court in Havells India Ltd and Anr. v. Amritanshu Khaitan & Ors, where the Court had discussed several facets of disparaging advertisements.

Dabur has claimed that Patanjali, in the advertisements, claims that its product is made using more than 51 herbs whereas only 47 herbs have been used. Further, it is alleged that Patanjali's advertisement specifically refers to Dabur's product made with using 40 herbs as “ordinary.” Moreover, Dabur claimed that Patanjali uses mercury in the product which is not fit for consumption of children.

During the hearing, Patanjali argued that its ad was only based on the information available in public domain and there was no reference to Dabur. It was argued that the 40 plus herbs details was mentioned on the packaging and not in the advertisment.

Referring to the ad of Patanjali, the Senior Counsel argued that, “He is saying this is the best...the best for all the children, wife's etc...he is not even saying to switch...he is commending the product.”

There is no identification of the plaintiff (Dabur) in the commercial and therefore, there cannot be any denigration of it's product, further argued the counsel.

Relying on the judgment in Havells India Ltd., it was argued that “Comparative advertising is permissible as long as competitor's mark is honest, however, in this case there is no reference to competitor.”

The Court in Havells India Ltd. had observed that “Failure to point out a competitor's advantages is not necessarily dishonest. However, care must be taken in ensuring that statements of comparison with the competitors' products are not defamatory or libellous or confusing or misleading.”

Accordingly, counsel for Patanjali argued that comparison of competing products is allowed. It was argued that this was an extreme case, where there was no mention of the competitor in the advertisement.

Amongst other things, reliance was placed on the following paragraph of Havells India Ltd., to argue that certain amount of disparagement has been held to be permissible by the Court. It was argued that Patanjali was only puffing its product by saying that it is better than others.

“In Indian law similarly, there is no rule which requires that all the features of a product have to be necessarily compared in an advertisement. To be fair, learned counsel for the plaintiffs during the course of arguments had conceded that comparative advertising with regard to the similar products could be confined to one relevant and verifiable feature. His only submission was that as prices of similar products had been compared, the defendants were bound to mention all other relevant parameters/features in the advertisement. However, no statutory provision or precedent was shown in support of said submission.”

While concluding for the day, Senior Advocate commented, “I am surprised why they are worried, they are market leaders and have 60% share. I have only 15% share.”

Arguments of Patanjali to be continued on Monday (January 27).

Case Title: Dabur India Limited v. Patanjali Ayurveda