DABUR INDIA LIMITED Vs. EMAMI LIMITED

JUDGEMENT

(1.) By this order, I propose to dispose of the application, which is filed by the plaintiff under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure praying for a temporary injunction. The plaintiff is a leading manufacturer of a large range of pharmaceutical products, toiletries, ayurvedic and other medicinal preparations. The plaintiff is manufacturing and marketing its products under the brand name 'Dabur', which is a well-known brand in India and abroad. The plaintiff in the course of its business also manufactures and markets Dabur Chayawanprash, which is being sold not only in India but also in various other countries. It is claimed by the plaintiff that the plaintiff has a market share of 63% of the total market of Chayawanprash through India. Chayawanprash , which is an ayurvedic formation, is primarily a health tonic and has therapeutic qualities for enhancing the immunity against various diseases.

(2.) The defendant is also engaged in the manufacture of various ayurvedic formulations including Chayawanprash. The defendant is manufacturing the said Chayawanprash under the brand name Himani Sona-Chandi Chayawanprash. The defendant has very recently introduced a new product in the market , namely, Himani Sona-Chandi Amritprash and the same is being now advertised on the audio visual media and the T.V commercial of the said product is presently being aired on Zee TV, Aaj Tak, Sony Mex, Zee Cinema etc.

(3.) It is contended in the plaint by the plaintiff that the plaintiff has very recently come across a T.V commercial of Himani Sona-Chandi Amritprash whereby the defendant seeks to disparage the product of the plaintiff, namely, Dabur Chayawanprash. The said T.V commercial stars the popular film star Sunny Deol and the visual depicts the Hero (Sunny Deol) dressed up as an Army outfit walking through the desert with another Army officer. Also shown in the commercial is a camel walking with the two officers. The T.V commercial depicts that on account of excessive heat, the other commander faints and the hero i.e Sunny Deol, who was walking ahead of him comes back running to rescue the fainted officer, puts him on his shoulder and walks to the camp. The commercial shows the hero carrying a bottle of Himani Sona-Chandi Amritprash. Towards the end of the commercial the hero while holding the bottle of Himani Amritprahs in his hand declares " GARMION MEIN CHYAWANPRASH BHOOL JAO, HIMANI SONA-CHANDI Amritprash KHAO. The said sentence translated into English would read as follows:- "FORGET CHYAWANPRASH IN SUMMERS, EAT Amritprash INSTEAD". In the light of the aforesaid background facts, it was contended by the counsel for the plaintiff that the aforesaid advertisement in the commercial shown is a negative campaigning of the product of the plaintiff and that there is an effort on the part of the defendant of insinuating the product of the plaintiff. It was submitted that the clear message that is being sent by airing the said T.V commercial is that consumption of chyawanprash is not advisable during summer season and that Amritprash is more effective substitute of chyawanprash for summer season. It was submitted that the aforesaid advertisement/T.V commercial of the product of the defendant is deceptive and dubious and an malafide attempt to do negative campaign and bringing in insinuating advertisement campaign against the product of the plaintiff.