Delhi HC restrains Dabur from circulating WhatsApp ad for amla hair oil

The high court, however, made clear that the observations made in the order are “only prima facie in nature” and should not be considered as a “final opinion” of the court or as binding when the suit is finally decided.

Marico had sought an ad interim injunction restraining Dabur from sharing or forwarding its WhatsApp advertisement or print advertisement allegedly disparaging the goodwill and reputation of Marico’s product ‘Nihar Natural Shanti Badam Amla Hair Oil’ and the registered Nihar trademarks.

Marico argued that with respect to Dabur’s print advertisement, the opening statement “Yaad Rakhna, Sasta Aawla, balo ko mehenga padega” is “alarming and threatening the consumers” against cheaper amla hair oils being inferior and harmful. Marico claimed that it amounted to generic disparagement.

The high court, however, refused to injunct the print ad and said that Marico had not been able to “make out a prima facie case against the print advertisement”.

The court said, “It is merely suggestive of the fact that there could be severe repercussions in using cheaper amla hair oils-cheaper being in quality and price. The leap of imagination that the plaintiff wants this court to take is too wide.”

The court said that a consumer reading the print advertisement would not be able to relate the term ‘sasta amla’ to the plaintiff’s product “because neither is the bottle in the advertisement referring to the plaintiff’s product, nor is it directly or indirectly implying the plaintiff’s product”. “It is also not a generic disparagement of all cheaper amla hair oil. In my opinion, the advertisement is to be judged from point of view of an ordinary consumer and his perception of the advertisement, which in my prima facie opinion would be to see the advertisement as a puffery, rather than from a sensitive competitor like the plaintiff,” the court further added.

With respect to the WhatsApp ad, the court observed that though the WhatsApp message/advertisement shows that the impugned print advertisement is aimed at Marico, “however, the ordinary consumer would not have the benefit of having the WhatsApp advertisement/message along with the print advertisement before him/her”.

“It would only be the persons who receive the WhatsApp advertisement/message along with the print advertisement, who would be able to make the connection between the two. Even otherwise, the WhatsApp message/advertisement merely reflects that the print advertisement is aimed against the plaintiff as it calls upon the shop employees to display print advertisement, therefore, the print advertisement has to be considered independent of the WhatsApp message/advertisement and the two cannot be read together, as has been prayed for by the plaintiff,” the high court said.

The WhatsApp ad had a reference to the print ad stating that it will be printed on the front page of a newspaper on July 12, 2022, adding that a copy of the print ad can be seen in shops and also made a reference to Marico’s product.