The Bombay High Court last month granted ad-interim injunction against Abbott laboratories in a suit filed by Hindustan Unilever Ltd. Court called Abbott Labs’ ‘Ensure Diabetes Care’ advertisement disparaging against the plaintiff and directed the defendant to immediately delete the video from any and all platforms, also stop sharing or circulating the video on any platform like WhatsApp .
The said action for injunction was sought by HUL against the defendants for the alleged acts of disparagement, denigration and slander of its nutritional beverage Horlicks Diabetes Plus, infringement of trade mark and infringement of copyright. Moreover, the plaintiff’s alleged that Abbott Labs is circulating an audio-visual clip of the said advertisement in Malayalam language which disparages, denigrates and belittles plaintiff’s said products, as well as infringes its registered trade marks and copyright.
HUL’s counsel Hiren Kamod informed Justice RI Chagla that the product ‘Horlicks Diabetes Plus’ which is the subject matter of the suit was launched in September 2021 and has been designed for blood sugar management. On August 23, 2024 the plaintiff came across the Impugned Advertisement of 27 seconds in wherein a product of Abbott Labs is featured. The said ad was put up as a WhatsApp status update by a pharmacist.
When the plaintiff’s representative enquired with the said pharmacist about the source of the Advertisement, he said that it was being widely circulated in various WhatsApp groups across the country comprising of pharmacists, chemists, sales agents, medical representatives, healthcare professionals, etc. as also in family groups on WhatsApp.
Advocate Kamod contended that pharmacies and doctors are important stakeholders for selling products of this category that are designed for consumer with special dietary needs and therefore, the said product is mostly sold in pharmacies. Thus, influencing the pharmacy owners is a predominant way to influence sale of such products.
Moreover, he stated that the said product although partially blurred is clearly visible and identifiable as the plaintiff’s product. In the ad, the said product is kept on the left and the protagonist places the defendants’ product on the right, the protagonist then shrugs off the said product and replaces it with the defendants’ product instead. This puts the plaintiff’s product in a negative light and gives a negative connotation that it is either an inferior/useless product, plaintiff’s counsel argued.
Court’s Order
After hearing the submissions and examining the facts, Justice Chagla observed –
“The Impugned Advertisement starts with a female protagonist shown as an industry expert and dressed in a white coat (used by doctors or pharmacists indicating person of authority and subject-matter expert) pushing away the Plaintiff’s said Product and replacing it with the Defendants’ Product. Thereafter, she goes on to describe the benefits of Defendants’ Product and why she recommends Defendants’ Product, in regional language.
Upon seeing the Impugned Advertisement and the story board, prima facie, I am of the considered opinion that the basic premise of the Impugned Advertisement is to denigrate and slander the Plaintiff’s said Product. The act of pushing away the Plaintiff’s product ‘Horlicks Diabetes Plus’ and substituting it with the Defendant’s product ‘Ensure Diabetes Care’ followed by the explanation given by the protagonist about the Defendant’s product gives a clear message that the Plaintiff’s said Product is inferior and is therefore not being recommended.”
Court agreed with Mr. Kamod’s submission that the depiction of the plaintiff’s said product ‘Horlicks Diabetes Plus’ in the Advertisement is deliberate and not a mere coincidence as the Defendant Nos. 1 and 2 could have very well used an unbranded product with a plain packaging and/or an unrelated packaging, however, they chose to deliberately use the plaintiff’s product evidently with a view to create a bias in the minds of the viewers.
Thus, Court restrained the defendants by a temporary order of injunction.
Author: Nitish Kashyap