Case Summary and Outcome

The Delhi High Court dismissed an injunction application on the ground that an advertisement is a facet of commercial speech that is protected by Article 19(1)(a) of the Constitution and the information in the advertisement is a necessary component of the right of the public to receive information. Plaintiff Horlicks Limited filed the suit against the defendant Heinz India Private Limited to restrain the defendant from publishing a newspaper advertisement which claimed that the defendant’s health drink had twice the amount of protein as the plaintiff’s health drink. The Court found that the advertisement was merely a form of comparative advertising and did not violate the plaintiff’s trademark as it did not distort competition or mislead the consumer.

Facts

In November 2017, the defendant Heinz India Private Limited published ‘an advertisement for its COMPLAN branded product in the newspaper Telegraph’ [para. 4]. The advertisement claimed that one cup of COMPLAN had the same amount of protein as two cups of HORLICKS. The plaintiff Horlicks Limited filed a suit for an injunction seeking to restrain the defendant from “communicating to the public or publishing the impugned advertisement.” [para. 1]

The plaintiff argued that the impugned advertisement infringed its registered Trademark. It said that by manipulating the service size of both drinks in the comparison, it misleadingly stated that the amount of protein in COMPLAN was double that of Horlicks. The defendant argued that the advertisement was only a form of comparative advertising, one that was permitted by Section 28 and Section 30 of the Trade Marks Act, 1999.

Decision Overview

J Manmohan delivered the opinion of the Single Judge of the Court.

The Court had to decide whether the plaintiff Heinz’s trademark had been infringed and whether the defendant Horlicks should be restrained from publishing the advertisement. Further, it had to decide whether the defendant as a corporate entity had a right to freedom of speech.

The plaintiff claimed that the impugned advertisement infringed its registered Trademark and wrongly stated that the protein in COMPLAN was double that of Horlicks. It argued that in the advertisement, the “serving size of COMPLAN had been manipulated” [para. 6] and increased to make it appear that COMPLAN had double the amount of protein as HORLICKS. In the advertisement, the serving size of COMPLAN was taken as 27 grams whereas the serving size of the HORLICKS was taken as 33 grams and this lead to a misleading comparison. The plaintiff further argued that the right to freedom of speech under Article 19(1)(a) of the Constitution was “only available to a citizen of India and not a corporate entity like the defendant” [para. 14] and that the right to privacy accorded in the Puttaswamy judgment¹ provided a person/corporate entity the “right to control the commercial use of his/her identity.” [para. 15]

The defendant Heinz India Private Limited, at the outset, stated that it had modified the advertisement to clarify that the comparison was based on the recommended serving size of 33 grams and 27 grams for COMPLAN and HORLICKS respectively. It stated that the impugned advertisement was not “defamatory and provided an accurate, true, and verifiable” [para. 18] comparative claim to the consumers, one that was permitted by Section 28 and Section 30 of the Trade Marks Act, 1999. Further, it stated that “trade puffery, even if uncomfortable to the registered proprietor of the trade mark, did not bring the advertisement within the scope of the trade mark infringement” [para. 23].

The Court dismissed the injunction application and stated that the advertisement was merely a form of comparative advertising and did not violate the plaintiff’s trademark as it did not distort competition or mislead the consumer. Further, relying upon decisions of the Supreme Court in India in Tata Press v. M.T.N.L.² and Bennett Coleman & Others v. Union of India³, it held that advertisements are a facet of commercial speech that is protected by Article 19(1)(a) and the same can be restricted only in accordance with law enacted under Article 19(2) of the Constitution. The Court stated that “in a democratic country, free flow of commercial information is indispensable and the public has a right to receive the commercial speech.” [para. 28] It also held that the right to privacy could not be asserted in the present case, as the “information was already in the public domain” [para. 32] on the respective packaging of both the products.

Thus, the Court dismissed the injunction application and held that advertisements/commercial speech is protected under the right to freedom of speech guaranteed by Article 19 of the Constitution.

1. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. ↩

2. Tata Press v. M.T.N.L., AIR 1995 SC 2438. ↩

3. Bennett Coleman & Others v. Union of India, (1972) 2 SCC 788. ↩