CAUSE TITLE:
Horlicks Ltd. & Anr. v. Zydus Wellness Products Ltd.
DATE OF ORDER:
14 May 2020
JUDGE(S):
Hon’ble Justice Mukta Gupta
PARTIES:
Appellant: Horlicks Ltd. & Anr.
Respondent: Zydus Wellness Products Ltd.
SUBJECT:
The Hon’ble Supreme Court (hereinafter referred to as ‘the Court’), granted an interim injuction to the respondent company restraining it from telecasting an advertisement where it compares its brand with that of Horlicks and shows it in a bad light. The Court granted the relief on grounds of the advertisement being misleading and disparaging.
Accordingly, the appeal was allowed.
IMPORTANT PROVISIONS
The Food Safety and Standards Act, 2006
- Section 3 - Definitions -
- In this Act, unless the context otherwise requires -
- "adulterant" means any material which is or could be employed for making the food unsafe or sub-standard or misbranded or containing extraneous matter;
- "Advertisement" means any audio or visual publicity, representation or pronouncement made by means of any light, sound, smoke, gas, print, electronic media, internet or website and includes through any notice, circular, label, wrapper, invoice or other documents;
- "Chairperson" means the Chairperson of the Food Authority;
- "claim" means any representation which states, suggests or implies that a food has particular qualities relating to its origin, nutritional properties, nature, processing, composition or otherwise;
- "Commissioner of Food Safety" means the Commissioner of Food Safety appointed under section 30;
- "consumer" means persons and families purchasing and receiving food in order to meet their personal needs;
- "contaminant" means any substance, whether or not added to food, but which is present in such food as a result of the production (including operations carried out in crop husbandry, animal husbandry or veterinary medicine), manufacture, processing, preparation, treatment, packing, packaging, transport or holding of such food or as a result of environmental contamination and does not include insect fragments, rodent hairs and other extraneous matter;
- "Designated Officer" means the officer appointed under section 36;
- "extraneous matter" means any matter contained in an article of food which may be carried from the raw materials, packaging materials or process systems used for its manufacture or which is added to it, but such matter does not render such article of food unsafe;
- "food" means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food, to the extent defined in clause (ZK) genetically modified or engineered food.
BRIEF FACTS:
- In this case, the appellants approached the High Court of Delhi seeking a permanent injunction restraining the respondent company, Zydus Wellness Products Limited, from telecasting its electronic as well as print media advertisement, which compared the two brands unfairly.
- In this advertisement, it was shown that one glass of complan, a product of the respondent company, is equivalent to two glasses of Horlicks, a product of the appellant company.
- The High Court granted an interim injunction to the respondents from using the said advertisement.
- This injunction was later vacated as the respondent company modified the advertisement by including and showing relevant data for comparison.
QUESTIONS RAISED:
- Whether the respondent company should be restrained from telecasting an advertisement which openly compares its products with that of the appellant company?
- Whether the said advertisement comes within the ambit of Article 19(1)(a) of the Constitution of India?
CONTENTIONS OF THE APPELLANTS:
- The counsel for the appellants contended that by saying that one glass of complan is equivalent to two glasses of Horlicks, the respondent company has shown their brand in a bad light.
- It was further contended that such advertisements would cast a bad shadow on the appellant company in the minds of their consumers. Therefore, the advertisement must be restrained from being telecasted.
CONTENTIONS OF THE RESPONDENTS:
- The counsel for the respondents contended that the advertisement in question is not misleading because the information provided was correct and was based on the recommended serving size of both energy drinks.
- It was also contended by the respondents that Article 19(1)(a) of the Indian Constitution gives them the right to use free speech even if it’s commercial speech.
ANALYSIS BY THE COURT:
- The Ld. Court analysed previous judgements on the present issue before granting an interim relief to the appellant company.
- The Court observed that in Reckitt & Colman of India Ltd. v. M.P. Ramachandran case, it was held by the Calcutta High Court that a seller cannot be prohibited from declaring that their goods are better than that of their competitors, even if such a declaration turns out to be false.
- Furthermore, in the Dabur India v. Colortek Meghalaya Pvt. Ltd. case, it was held by the Delhi High Court that an advertisement must not be misleading, false or deceptive. In certain cases, companies are allowed to make a glorious representation of their product. Such a representation cannot be taken as false. However, if the representation turns out to be misleading or deceptive, the protections granted under Article 19(1)(a) will not be available.
- The Ld. Court after relying on the above-mentioned judgements held that the balance of convenience was in favour of Complan which created the impression that one glass of Complan is superior than that of two glasses of Horlicks. Such an advertisement misleads the audience into viewing the other brand as inferior to the one advertised. Hence, such advertisements must be restrained from telecasting.
CONCLUSION
The Ld. Court granted an interim injuction to the respondent company restraining it from telecasting an advertisement where it compares its brand with that of Horlicks and shows it in a bad light. The Court granted the relief on grounds of the advertisement being misleading and disparaging.
Accordingly, the appeal was allowed
