Comparison of rival products in six seconds TVC, without disclaimer voiceover, amounts to disparagement: Delhi HC injuncts Zydus

The Delhi High Court on May 14, 2020 {HORLICKS LIMITED & ANR. v.  ZYDUS WELLNESS PRODUCTS LIMITED} held that intent of the advertisement is understood from its storylines and message sought to be conveyed is the factor to be kept in mind, while deciding the question of disparagement. Further held that it is settled law that the comparison should not be untrue, misleading or false and can be based on one particular quality and the defendant need not highlight the difference on all the parameters. 

The HC held that there is 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.

In the present case, the Plaintiffs had filed the suit against the defendant inter alia seeking prayer of permanent injunction from telecasting or otherwise communicating to the public the impugned advertisement which as per its case amounts to intentional and deliberate disparagement of the plaintiffs' health food drink HORLICK by the defendant through its television commercial (TVC). And, in which suit, an application for interim injunction had also been filed by the plaintiff.

The HC, while deciding the application for interim injunction, held that there can be no dispute about the fact that comparison based on the recommended serve size by the parties can be done in a commercial advertisement, however, the meat of the matter is whether the disclaimer as put in the print advertisement is visible and audible in the impugned electronic medium. The High Court held that it finds that on playing the TVC, 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, it was held that 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.

It was further held that the electronic medium is a very powerful medium of communication and leaves an indelible mark on the mind of the viewer. The Court held it finds that prima facie in view of no voiceover qua the disclaimer qua the serve size being there and the visual advertisement being for six seconds only giving insufficient time to note the disclaimer, the plaintiffs 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.

Claim of the defendant was also that since the TVC is running since May, 2019, the balance of convenience does not lie in favour of the plaintiffs. The HC held that the said argument defies the fact that TV viewership is continuous and on daily basis and hence every new person who views the advertisement would be clearly misled.

Consequently, the HC directed that till the disposal of the suit the defendant is restrained from advertising the impugned TVC in its present form.