The Calcutta High Court dismissed an appeal filed by Emami Ltd. seeking a broader injunction against Dabur India Ltd. over an advertisement for its prickly heat powder product, Cool King. Emami alleged that Dabur’s commercial disparaged its popular products Dermi Cool and Navratna by showing a similar-looking bottle and describing it as “Sādhāraṇ” (ordinary).
The Division Bench of Justices Sabyasachi Bhattacharyya and Uday Kumar upheld the modified order of the Single Judge, ruling that the advertisement as a whole did not amount to product disparagement. The Court found no direct or indirect reference to Emami’s products, and held that the bottles shown in the ad and those used by Emami were visibly distinct in shape, size, and color. It also ruled that the word “Sādhāraṇ” was used in a generic comparative sense, not in a manner that denigrated Emami’s brand.
Rejecting Emami’s argument on public recall and trade dress similarity, the Court held that the average viewer would not associate Dabur’s ad with Emami’s product six months after the original ad featuring a similar bottle was modified. The Bench further noted that the right to commercial speech and advertising under Article 19(1)(a) of the Constitution must be balanced with the right of a competitor to protect its goodwill, but a vague or illusory perception of disparagement could not justify curbing legitimate advertising.
The appeal was accordingly dismissed, with the Court allowing Dabur to continue airing its Cool King advertisement, subject to compliance with the interim injunction already in place.
Appearances in the case:
Appellant: Mr. Debnath Ghosh, Sr. Adv., Mr. Shuvasish Sengupta, Adv., Mr. Biswaroop Mukherjee, Adv., Ms. Mini Agarwal, Adv., Ms. Ratnadipa Sarkar, Adv.
Respondent: Mr. Sudipto Sarkar, Sr. Adv., Mr. Sourajit Dasgupta, Adv., Mr. R. Jawaharlal, Adv., Ms. Megha Kumar, Adv., Mr. Sudhakar Prasad, Adv.
Read Judgment
