In the ever-evolving world of commerce, competition is the driving force that fuels innovation and progress. Companies vie for consumer attention, often resorting to advertising as a powerful tool in their arsenal.

As a dedicated law firm specializing in consumer practice, the Law Offices of Kr. Vivek Tanwar Advocate and Associates, have a deep understanding of the intricacies and nuances of cases that revolve around consumer rights and advertising ethics. Our expertise extends to cases that challenge the boundaries of comparative advertising and the implications of misleading advertisements.

In this case, Horlicks Limited ‘Horlicks,’ approached the Delhi High Court to seek a permanent injunction against Zydus Wellness Products ‘Zydus,’ from telecasting the broadcasting of an advertisement. This advertisement claimed that one glass of Complan, a product by Zydus, was equivalent to two glasses of Horlicks. This contentious advertisement was being aired on multiple channels in English, Bengali, and Tamil.

Expressing dissatisfaction with the advertisement, Horlicks took the matter to the High Court, asserting that the advertisement was deceptive and amounted to disparagement. In response, Zydus argued that the advertisement was not misleading since the information provided was accurate and aligned with the recommended serving size for both beverages.

Horlicks had previously filed a similar lawsuit against Zydus for a print media advertisement. Initially, the High Court granted an interim injunction, prohibiting Zydus from publishing the advertisement. However, this injunction was lifted after Zydus voluntarily modified the advertisement by including a disclaimer about the serving size and committing to only publish the altered version.

In reaching a decision on the interim relief, the High Court examined a plethora of legal precedents related to misleading advertisements, disparagement, and the regulations governing television advertisements. These include the following key cases:

  1. In the case of Reckitt & Colman of India Ltd. v. M.P. Ramchandran, the Calcutta High Court established that a seller has the right to declare that their goods are superior to those of competitors, even if this declaration is false. However, the seller is not permitted to defame their competitors’ products, and without defamation, no case of misleading advertisement and disparagement can be filed.
  2. In Dabur India v. Colortek Meghalaya Pvt. Ltd., the Delhi High Court outlined guiding principles for addressing misleading advertisements: Advertisements are protected as commercial speech under Article 19(1)(a); an advertisement must not be false, misleading, or deceptive, but in some cases, it can be considered a positive representation of the advertiser’s product; and protection under Article 19(1)(a) is only unavailable when the advertisement goes beyond praising its product and becomes deceptive and misleading.
  3. The High Court also referred to the principles of disparagement established in Pepsi Co. Inc. v. Hindustan Coca Cola Ltd., emphasizing the importance of evaluating the intent, overall effect, and manner of advertising in determining whether an advertisement promotes the advertiser’s product or disparages a rival product. Truthful disparagement is permissible, but untruthful disparagement is not allowed.”

In conclusion, the law regarding misleading advertisements is an evolving field, and the judgment in the Horlicks case adds to the body of jurisprudence on this subject. Notably, the High Court permitted the circulation of the same advertisement in print media while restraining its telecast. This differentiation is attributed to the varying impact of print and electronic media on the audience. Electronic media, with its combination of audio-visual techniques, has a greater potential to influence its viewers, thus necessitating stricter regulations. As a result, the same advertisement was allowed in print media but prohibited from being televised.

Furthermore, an analysis of the aforementioned case laws reveals that the law concerning misleading advertisements is highly subjective, and even minor alterations in the facts can impact the outcome. It appears that while it is acceptable for a seller to compare their products to those of competitors and claim superiority, it becomes problematic when the competitor’s goods are portrayed as inferior to the seller’s.

Written by : Adv. Anjali Bablani (D/3376/2016)

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