Fast Moving Consumer Goods (“FMCG”) are goods with a comparatively shorter shelf-life and high consumer demand. FMCG includes a wide range of goods such as food and beverages, cosmetics, cleaning supplies, etc.
The FMCG market is highly saturated and one of the most competitive market spaces in India, thereby leading to the emergence of safeguarding one’s brand through Intellectual Property Rights (“IPR”).
IPR can help the FMCG players to create a strong brand reputation and gain a competitive edge over the other well-known players in the market. A few of the very common and reputed brands in the FMCG sector are Britannia, Zydus Wellness, HUL, and ITC.
The present blog shall discuss the recent landmark judgments of the year 2022, wherein the foregoing FMCG giants has been a part of the legal battle pertaining to IPR.
BRITANNIA INDUSTRIES LTD. v. PARLE BISCUITS PVT. LTD. AND ORS.
Forum: The High Court of Delhi
Citation: CS(COMM) 129/2021
Order Dated: 19.04.2022
Issue: Whether the impugned advertisement of the Defendants had disparaged the Plaintiff’s cookies to promote its own ‘Parle 20-20’ cookies?
The pivotal issue put forth by Britannia Industries Ltd. (“Plaintiff”) was regarding the advertisement uploaded on YouTube by Parle Biscuits Pvt. Ltd. (“Defendant”). The Plaintiff claimed that the Defendant sought to promote its product ‘Parle 20-20’ cookies by denigrating, defaming, and disparaging the Plaintiff’s ‘Britannia Good Day Butter’ Cookies/Good Day range of cookies.
After detailed perusal of the impugned advertisement, the High Court ordered for the Defendant to pull down the impugned advertisement in one week’s time. Subsequent to the Order of the High Court, the Defendant further agreed to change the color of its packaging and also alter the design of the cookie.
The High Court further directed that the Defendant shall ensure that among all the impugned advertisements, two of such impugned advertisements are modified wherein the visuals of the cookie of the Plaintiff’s brand is blurred and the currently used cookie image would be no longer visible in the said advertisements on any online platforms.
The High Court directed the Defendant to ensure that no image of the products of the Plaintiff is to be used in any advertising or otherwise, which is violative of the Plaintiff’s registered design.
USV PRIVATE LIMITED v. HINDUSTAN UNILEVER LIMITED
Forum: The High Court of Bombay
Citation: CA (L) No. 22103 of 2022 with IA (L) No. 22107 of 2022
Order Dated: 16.06.2022
Issue: Whether the campaign of the Plaintiff was disparaging and denigrating to the Defendant’s products?
Both the Parties in the present case are FMCG giants and have been in business for several years. USV Private Limited (“Plaintiff”) is a competitor of Hindustan Unilever Limited (“Defendant”) and has been selling Sebamed products since a very long time.
The impugned campaign initially starts with a teaser film in Hindi which states the following line: “Sach Coming Soon”. The intent and story line of these advertisements, as claimed by the Defendant, were said to be misleading, containing falsehood and that they were disparaging and denigrating the Defendant’s products.
In the present Appeal before the Division Bench of the Bombay High Court, the Plaintiff challenged order of the Single Judge Bench of the Bombay High Court wherein it was held that the impugned campaign of the Plaintiff was indeed disparaging the product and brand of the Defendant.
The High Court held that the impugned campaign targeting successful and popular products of the Defendant along with another brand, namely, Wipro Enterprises Pvt. Ltd. were likely to cause irreparable loss and damage to the Defendant’s brand reputation and products.
The High Court noted that the comparison sought to be made and the message said to be conveyed in these advertisements are between products which cannot be compared. Having come to the conclusion that the impugned campaign amounted to infringement of the Defendant’s trademarks, the Division Bench of the High Court held that the Defendant was rightly entitled to appropriate relief and disposed of the Interim Application as infructuous.
ITC LIMITED v. CENTRAL PARK ESTATES PRIVATE LIMITED AND ANR.
Forum: The High Court of Delhi
Citation: C.O. (Comm. IPD-TM) 763 of 2022
Order Dated: 14.11.2022
1. Whether with the use of the trademark “Balkh Bukhara”, the Defendant had infringed upon the Plaintiff’s rights in the registered trademark?
2. Whether the Plaintiff’s mark “BUKHARA” amounts to a well-known mark?
The present suit was filed by ITC Limited (“Plaintiff”) against Central Park Estates Pvt. Ltd. and St. Jerome Hospitality Management Services Pvt. Ltd. (“Defendants”), wherein the Plaintiff sought protection of its trademark ‘BUKHARA’ used in respect of restaurant and other hospitality services.
The mark ‘BUKHARA’ was adopted by the Plaintiff in the late 1970s, whereas the Defendants adopted the mark ‘BALKH BUKHARA’ for its restaurant in 2018. The Plaintiff’s primary contention was that the Defendants had imitated the Plaintiff’s ‘BUKHARA’ restaurant’s various aspects, including name, logo interiors, decor, staff uniform, utensils, wooden menu and the whole look and feel of the restaurant.
The High Court held that the Defendants shall be restrained from using the mark ‘BALKH BUKHARA’ or any other mark which was identical or deceptively similar to the Plaintiff’s mark ‘BUKHARA’ restaurant, hotel, or other hospitality-related services. Further, the High Court also declared the mark ‘BUKHARA’ of the Plaintiff as a well-known mark due to its enormous fame and goodwill.
ZYDUS WELLNESS PRODUCTS LTD. v. DABUR INDIA LIMITED
Forum: The High Court of Delhi
Citation: CS (COMM) 304/2022 and I.A. 7312/2022 and 17882/2022
Order Dated: 22.12.2022
Issue: Whether the impugned commercial of the Defendant compares, disparages, or denigrates the Plaintiff’s product ‘GLUCON-D TANGY ORANGE’ or the product category of the Plaintiff?
Zydus Wellness Products Ltd. (“Plaintiff”), one of the leading companies engaged in manufacturing and marketing of a wide range of consumer products, manufactures and sells one of the most popular glucose powders, namely, ‘GLUCON-D’. The Plaintiff claimed that Dabur India Limited’s (“Defendant”) ‘DABUR GLUCOPLUS-C ORANGE television commercial disparaged the Plaintiff’s one of the well-known variants of GLUCON-D, namely, ‘GLUCON-D TANGY ORANGE’. The Plaintiff asserted that the impugned commercial gave the impression that all the orange glucose powder drinks were entirely inefficacious in providing energy and only the Defendant’s product was capable of providing energy.
The High Court, while relying upon various other cases, observed that there has to be either expressed or implied reference to a competitor or its goods or a product category for an advertisement to be comparative advertising. The impugned commercial in question could indeed be classified as ‘comparative advertising’ as it identifies ‘orange glucose’ as the product category. The High Court further observed that a commercial has to be viewed as a whole from the view of an ordinary consumer or viewer.
However, with regards to the claim of disparaging the product of the Plaintiff, the High Court held that the impugned commercial only highlights the qualities of the Defendant’s product and it does not disparage any orange glucose powder drink.
The FMCG sector is not only a highly saturated market but is also extremely competitive in nature with the presence of well-known players who have been in the market since the past couple of decades. In light of the same, it is of utmost importance that FMCG companies safeguard their intellectual assets, failing which, the brands are susceptible to disparagement and brutal comparisons over television commercials and social media campaigns.
The judgments discussed hereinabove makes it apparent that the well-known players of the FMCG sector are often victim to such comparative advertising, and the Judiciary has always been pro-actively safeguarding the IPR of such companies.
However, the FMCG companies ought to be vigilant about the commercials aired by the competitors, as such commercials often belittle and deprecate the brand value and products of the competitor companies functioning in the relevant market ecosystem.
– Team AMLEGALS assisted by Ms. Diya Ambhavi (Intern)
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