MARICO LIMITED Vs. DABUR INDIA LIMITED

JUDGEMENT

(1.) This interim application has been made in a commercial IP suit, which complains of disparagement of the Plaintiff's goods and infringement of its registered trade mark.

(2.) The Plaintiff is a manufacturer and marketer of various well known and established household brands, such 'Nihar', 'Parachute', 'Parachute Advansed', Saffola, 'Livon', 'Hair and Care', ' Silk-N-Shine' etc. The Plaintiff markets multiple products such as hair oil, edible oil, health foods, hair care, skin care etc. with the use of these brand names, all of which are registered trademarks of the Plaintiff. The grievance of the Plaintiff in this case is in respect of hair oil marketed by it, particularly 'Amla Hair Oil' marketed under the trade mark NIHAR with or without addition/s to it ('NIHAR range'). It is submitted that the Plaintiff is a market leader in terms of sales by volumes; about 42.6 per cent of Amla Hair Oil sold in the market is under the Plaintiff's NIHAR range of trademarks, though by value its market share is said to be of 30.8 per cent. It is submitted that the bottles, in which NIHAR range of Amla Hair Oil is marketed by the Plaintiff, have a particular size, shape, features, contours and configuration; these are distinctive and unique to the products marketed by the Plaintiff. It is submitted that the Plaintiff has also designed distinctive labels for NIHAR range of Amla Hair Oil, which go along with, and take, the shape and size of the bottles. The Plaintiff even has a registration for the particular label, which is used on its bottles with the same shape. The Plaintiff claims to have acquired enormous reputation and goodwill in Amla Hair Oil products marketed by it under the NIHAR range and in the distinctive shape, size, etc. of the bottles used for the products. The grievance of the Plaintiff is that the Defendant, who is a rival manufacturer and marketer of amala hair oil, is issuing advertisements in newspapers comparing its amla hair oil with rival hair oils terming them as 'cheap oil' and disparaging them as bad quality products making hair weak, leading to their breakage and fall. It is submitted that advertisements create an unmistakable impression that these rival cheap products, described therein as deficient in quality, are the Plaintiff's products, which are incidentally much cheaper than the Defendant's rival products. It is submitted that the distinctive shape, size and contours of the bottles in which the Plaintiff markets its products are displayed as bottles of cheap oil, which is said to be harmful to hair and which is said to cause hair fall or breakage. It is submitted that these advertisements are issued with a malicious intent to slander or disparage the Plaintiff's NIHAR range of Amla Hair Oil and gain unjustly by promoting its own hair oil by showing the Plaintiff's products in a poor light. The Plaintiff submits that this amounts to injurious falsehood and disparagement of the Plaintiff's goods.

(3.) Before we consider the Plaintiff's grievance, it must be noted at the outset that the Defendant has offered to change the colour, shape, size and contours of the rival bottle of hair oil used by it in its advertisements for comparison with its own brand of amla hair oil. This statement is made with prejudice by learned Counsel for the Defendant. Learned Counsel also produces a sample advertisement showing the changed shape, size and contours of the bottle now proposed to be used by the Defendant in its advertisements for comparison of products. The Plaintiff's grievance, thus, needs to be considered in the light of what is now proposed by the Defendant. The sample advertisement is kept on record, marked 'X' for identification.