Dabur vs. Dhruv Rathee

Introduction

Dabur claimed that Dhruv Rathee’s video unfairly compared carbonated drinks with ready-to-serve (RTS) fruit beverages, causing a generic disparagement of all packaged drinking fruit juices. Dabur also alleged that the video specifically targeted its Real fruit juices by using partially blurred Real logos and promotional advertising clips.

The court recognized that while dissemination of information through any medium is a reality today, it should be legal. Freedom of speech and expression under Article 19(1)(a) is limited through Article 19(2). In the video, an advertisement was shown that was aired by Real and its product was blurred, leading the court to conclude that any consumer would assume the product shown in the video belongs to Dabur.

The court also invoked Section 29(9) of the Trademarks Act, which deals with infringement of a mark by its spoken use or visual representation, to hold that the unauthorized use of packaging, label, and logo of the Real product in the video violated trademark and copyright protection.

Dabur Verses Dhuruv Rathi

The Delhi High Court interpreted the aforementioned section in the case of Hamdard National Foundation v. Hussain Dalal. The court held that the spoken words must either be a misstatement causing confusion and deception, which is the essence of the passing off action, or they should cause infringement by diluting the distinctive character and reputation of the trademark, whether intentional or unintentional. Therefore, the intent to defame or tarnish the mark’s reputation is irrelevant, and what matters is whether the actions alleged are causing confusion and deception.

Rathee, in the current scenario, has presented his views substantiated by factual evidence, citing the ingredient table of “Real” fruit juice and drawing conclusions about its impact on health. While a separate court delivered the judgment in this case, its persuasive value is limited, and the Calcutta High Court’s order appears to lack the crucial elements of fairness and justice. Firstly, the court failed to investigate whether the statements and assertions made in the video were accurate or inaccurate, and neglected to differentiate between opinions and facts. Such an investigation is necessary since opinions cannot be the foundation for claims of defamation or disparagement. Secondly, the court did not fulfil the requirement of the section by identifying the unique feature that was recognisable in the video. Thirdly, even if speech can violate a trademark, the court did not specify the specific parts of the video in which Rathee purportedly infringed the trademark.

The court in the present case did not rely on section 30(1) of the Trademarks Act, which, when read with section 29(9), may prima facie establish a case of disparagement against Rathee. However, it is important to note that the impugned video does not mention the words “Dabur” or “Real”, and Dabur itself admitted that the “Real” mark was blurred in the video. Furthermore, freedom of speech is a fundamental right, and creative freedom is an integral part of it. Therefore, the court must balance the petitioner’s right to protect their trademark and the respondent’s right to express their opinions. In generic disparagement cases, a greater degree of leeway should be provided to creative freedom, even if a prima facie case of disparagement can be made.

In the present case, the court has discussed the three requirements for granting an interim injunction, but it does not provide sufficient reasoning as to why the balance of convenience favours the petitioners or how the video causes irreparable damage. All three requirements must be met to grant an interim injunction, which does not seem to be the case here. The video did not directly refer to the product and the advertisement shown in the video was blurred, which weakens the argument for granting an injunction. Even if the court were to grant an interim injunction, it should have been limited to removing the specific advertisement only.

It is noteworthy that Dabur specifically chose to approach the Calcutta HC to file their case despite having the option to approach any HC. This is because the jurisprudence surrounding trademarks in Calcutta is different from that in other HCs such as Bombay or Delhi. This highlights the advantage that large corporations have over smaller businesses that may find it challenging to engage in similar legal battles, especially if they are located far from the court.

Furthermore, it is interesting to observe that Dabur decided to pursue a trademark disparagement case rather than a defamation case. In defamation cases, truth is generally a defense against liability, and the focus would have been on whether Dhruv Rathee was speaking the truth or not. However, in the present case, the inquiry is centered around the interpretation of the Trademark Act. It should be noted that in some other cases, corporations have pursued both defamation and trademark-related claims.

Conclusion

As highlighted in the article, the court’s ruling and subsequent orders present issues. It is a missed opportunity to clarify the applicability of Section 29 in non-advertisement videos since most of the jurisprudence has developed around advertisements. The application of Section 29(9) is also unclear, and the court should consider the fundamental right of freedom of speech and expression and provide latitude to content creators and others in such cases.

Author: Tanya Saraswat, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

References

  • https://spicyip.com/2023/03/trademark-disparagement-free-speech-and-bullying-the-case-of-dabur-v-dhruv-rathee.html
  • https://indiankanoon.org/doc/77092668/

Leave a Reply

Categories

Archives

  • March 2024
  • February 2024
  • January 2024
  • December 2023
  • November 2023
  • October 2023
  • September 2023
  • August 2023
  • July 2023
  • June 2023
  • May 2023
  • April 2023
  • March 2023
  • February 2023
  • January 2023
  • December 2022
  • November 2022
  • October 2022
  • September 2022
  • August 2022
  • July 2022
  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021
  • October 2021
  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • September 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010