FACTS OF THE CASE

Zydus Wellness Products ltd. filed a suit against Dabur India Ltd. for permanent injunction.
Suit is filed seeking restraint against two commercials released by Dabur India Ltd. for promotion of its product ‘DABUR GLUCOPLUS-C ORANGE’.

CONTENTIONS OF THE PLAINTIFF

Plaintiff’s product has 74% market share in relation to orange glucose energy drinks. Thus, this would be a case where the Plaintiff’s product is entitled to generic disparagement of entire product category.
Even if the Defendant’s product admittedly has 25% more glucose, the same would not mean that the additional glucose content translates into higher energy.
The energy per 100 Gms of Defendant’s product is 365 kcal and that of plaintiff’s product is 368 kcal. Thus, the energy being claimed to be higher in the Defendant’s product is itself false.
Defendant’s commercial undervalues the Plaintiff’s product and even though the Defendant may claim that the overall impression is hyperbolic in nature, it is a serious misrepresentation of fact, the same can be injuncted by a court of law.
There has been no testing done on humans to show that the Defendant’s product is better.
It is also not clear as to whether the representation that more glucose leads to more energy.

CONTENTIONS OF THE DEFENDANT

In the impugned TVC, there is no reference to any other competing product; hence there cannot be any denigration.
The Plaintiff’s drink is not even remotely referred to in the impugned TVC, unlike in other cases, where the products are sometimes even referred to by blurring and other indicators.
The Plaintiff itself can claim that the glucose leads to instant energy in comparison with an ordinary drink thus injunction being sought against the Defendant would be contrary to the Plaintiff’s own stand on its own packaging.
The Defendant is merely showing its own superiority and highlighting its product’s features.
The ingredients of both the products clearly show that glucose is 50.4% in Defendant’s product and 40% in Plaintiff’s product. This means 25% more instant energy, which is depicted in the commercial. Thus, the Defendant is entitled to say that it gives 25% more instant energy in every sip as glucose give instant energy.
The Plaintiff cannot deny the fact that more glucose leads to more energy. The print advertisement of the Plaintiff which proudly proclaims ‘instant energy k liye’ supports this contention.
Comparative advertisement has to be acceptable so long as there is no disparagement or denigration.
Competitor cannot be hypersensitive with an intention to crush competition and ought to be able to tolerate a certain amount of exaggeration or puffery in television commercials.

JUDGEMENT OF THE COURT

The contested TVC does not denigrate any orange glucose powder drink; rather, it only emphasizes the benefits of the defendant's product.
Although the comparison in the contested TVC may not be favorable to the plaintiff, it cannot be deemed to be derogatory. The purpose of the advertisement in question and its overall impact appear to be to promote the Defendant's product rather than to disparage that of the Plaintiff or any other manufacturer.
The Defendant’s product does have 25% more glucose than the Plaintiff’s product. The impugned advertisement is by and large truthful and there is no falsity involved. Therefore, there is no serious misrepresentation of fact on part of the Defendant in the impugned TVC.
The packaging for the Plaintiff's own products and its ads, which have been filed with the court, demonstrate the Plaintiff's own position that glucose provides quick energy. The request for a temporary injunction is unlikely to be granted. As a result, the Plaintiff's application is denied.