The Impact Of Electronic And Print Media On Disparagement And Comparative Advertisements In Horlicks Ltd. & Ors V. Zydus Wellness Products Ltd – Media, Telecoms, IT, Entertainment

The Impact Of Electronic And Print Media On Disparagement And Comparative Advertisements In Horlicks Ltd. & Ors V. Zydus Wellness Products Ltd – Media, Telecoms, IT, Entertainment


To print this article, all you need is to be registered or login on Mondaq.com.

In recent times, the market for malt-based beverages in India
has seen a significant downturn due to several reasons, ranging
from heightened consumer awareness, increased substitutes to
stricter government norms. In such a competitive market
environment, corporate entities have been engaging in aggressive
marketing strategies to outmanoeuvre their rivals. It is important
to note that advertising, as a form of commercial speech,
is protected under the Freedom of Speech and Expression under
Article 19(1)(a) of the Indian Constitution.1 In order
to increase their consumer base, entities engage in comparative
advertising where one party advertises its goods and services by
comparing them with those of a competitor. India does not have any
specific statutory provisions that directly focus on comparative
advertisements, but Indian courts have paved the way for the
adjudication of such disputes with their rulings. In many cases,
comparative advertisements are structured in a manner where
disparaging statements are used to malign the reputation of
competitors and their products. It falls upon the courts to
demarcate between such legally permissible advertisements as
compared to those that are disparaging a competitor’s
goods.

Recently, in Horlicks Limited and Ors. v. Zydus Wellness
Products Ltd.,
the High Court of Delhi, till the disposal of
the suit, restrained the Respondent/Defendant, Zydus Wellness
Products Ltd., from airing its Television Commercial (TVC) as the
same was prima facie disparaging to the
Appellant/Plaintiff Horlicks Limited.2

FACTS OF THE CASE

In mid-2019, the defendants, who are manufacturers and sellers
of the powdered malt beverage Complan, aired a TVC it was
stated that one cup of Complan has the same amount of
protein as two cups of Horlicks. The present suit was then
filed by the Petitioner to challenge the said TVC.

The decision of an earlier comparative advertisement dispute
between the parties was adjudicated upon by the High Court of
Delhi, in Horlicks Ltd. & Anr. v. Heinz India Pvt.
Ltd.
regarding a newspaper advertisement published by the
defendant. In the impugned advertisement, it was stated that one
cup of Complan had the same amount of protein as contained
in two cups of Horlicks while providing a disclaimer
regarding the serving size at the bottom of the advertisement. The
Court, in deciding the various issues before it, opined that the
isolation and comparison of one component (protein) was
permissible. It also held that comparing products based on serving
size was legally permissible and was not denigrating and
misleading. The defendants, of their own accord, sought to modify
the advertisement in a manner where the disclaimed formed an
integral and prominent part of the advertisement. Thus, the Court
concluded that the impugned modified advertisement was not
misleading, and there was no denigration or disparagement of the
plaintiff’s mark. This 2018 order is under appeal and since
there was no stay order, the defendant was not restrained from
displaying the modified advertisement.3

In the present case, the defendants aired a TVC identical to the
abovementioned print advertisement around mid-2019. The impugned
TVC contained a textual disclaimer, in accordance with the
abovementioned print advertisement, below the cups.

THE PLAINTIFF’S CONTENTIONS

In the TVC, confusion was being created in the minds of the
consumers, since it gives a misleading message to them. In the TVC,
there was no voiceover for the disclaimer and in the short 6
seconds runtime, the consumer did not have the time to peruse the
textual disclaimer. The plaintiff contended that the intention of
the defendant behind the telecasting of this commercial was to
denigrate the plaintiff’s product Horlicks. It stated
that it had not accepted the modified advertisement and that an
appeal had been filed against the earlier decision of the High
Court not restraining the publication of the print advertisement.
It stated that a party was allowed to puff its products
but not denigrate the products of other parties. The modified print
advertisement was only permitted by the court after modifications
that made the disclaimer a prominent and integral part of the
advertisement.

THE DEFENDANT’S CONTENTIONS

The defendant stated that the overall intent of the TVC was to
educate the consumers with respect to protein content in one cup of
Complan (one recommended serving) as compared to two cups
of Horlicks (two recommended servings). The defendant also
stated that advertiser should be allowed creative latitude
and that the Plaintiff should not be hypersensitive. It
also contended that the per size comparison of the two
products was an accepted method of comparison. An overall
assessment of the facts and the impact of the TVC needs to be
considered and the Court should only interfere in the grossest
case of abuse.

DECISION

The Court emphasised on the nature of the medium used to
propagate the advertisement in this case. It noted that an
advertisement in electronic media would have a stronger impact that
one made in print media. It observed that. “This Court
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, 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”.
4 It explained that TV viewership was of
a daily and continuous nature and hence different from print media.
Consequently, the Court restrained the advertisement from being
telecasted it its present form pending the disposal of the
suit.

COMMENTS

This interim order of the Delhi High Court importantly
distinguished between the nuances of advertising in electronic
media as compared to print media. It demonstrated that a fluid
perspective was essential in judging identical content of
advertisements when expressed in different forms of media. It also
sets the foundation on which courts and advertisers can rely on
while adjudicating and telecasting advertisements respectively. The
Court initially embarks on a similar vein to Horlicks Ltd.
& Anr. v. Heinz India Pvt. Ltd.
where it finds that the
comparison on the basis of cups after referring satisfactorily to
serve size was not disparaging but the restraint on airing was on
grounds of the manner and duration of providing the disclaimer.

Footnotes

1. Tata Press Ltd. v. Mahanagar
Telephone Nigam,
AIR 1995 SC 2488.

2. CS (COMM) 464/2019.

3. 2018 SCC OnLine Del 12975.

4. CS (COMM) 464/2019.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

POPULAR ARTICLES ON: Media, Telecoms, IT, Entertainment from India

Gaming Law

Nishith Desai Associates

A day after the Law Commission of India released its report entitled ‘Legal Framework: Gambling and Sports Betting…

Advertising Law In India – Part 1

Global Jurix, Advocates & Solicitors

At present in India, there is no central statutory agency or uniform legislation regulating the advertising industry.

Impact Of Shreya Singhal Judgment On Intermediaries

Seth Dua & Associates

The Judgment has placed limits on private censorship of Intermediaries as a Court order or notification from a government authority or agency would be required prior to removal of content.

I'm business helper , i have 20 year experience in business management sector. I help many business owners to grow business. My passion is helping fellow entrepreneurs and small business owners succeed.

Leave a Reply

Your email address will not be published. Required fields are marked *