Hearing Patanjali Ayurved’s appeal on its Chyawanprash ads, the Delhi High Court Tuesday ruled that the firm can use the words “why use ordinary Chyawanprash”, with respect to the phrase “Why settle for ordinary Chyawanprash made with 40 herbs?”.
It cannot, however, use the phrase “with 40 herbs”, which is a clear reference to Dabur. Dabur advertises its Chyawanprash as containing ‘40+’ ayurvedic herbs.
The court modified a single judge’s order which had directed Patanjali Ayurved to remove lines from ads disparaging Dabur’s Chyawanprash.
The appeal by Patanjali, taken up before a division bench of Justices C Hari Shankar and Om Prakash Shukla, was against the single-judge’s order.
In July, Justice Mini Pushkarna had directed that the parts in the ads stating “Jinko Ayurved or Vedon ka gyaan nahi Charak, Sushrut, Dhanvantri aur Chyawanrishi Ki parampara ke anuroop, original Chyawanprash kaise bana payenge”, “Toh ordinary Chyawanprash kyu” and “Why settle for ordinary Chyawanprash made with 40 herbs?” be deleted.
The single judge had ruled that “a clear case of disparagement is made out.”
Justice Shankar, while hearing the appeal, orally remarked to Patanjali, “The moment you’ve put 40 herbs, it is a direct targeting to them (Dabur)…”
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Patanjali, in response, suggested that it can drop the reference to “40 herbs” and can simply say, “Why settle for ordinary Chyawanprash”. Justice Shankar orally observed that this “per se is not disparaging”.
“Everyone has a right to say that mine is superb and the rest of the world is ordinary… so long he doesn’t disparage… he may be saying his Chyawanprash is extraordinary, rest are all ordinary, per se it is highly disputable whether that can be treated as disparagement…,” Justice Shankar agreed orally.
Dabur, through its counsel, senior advocate Sandeep Sethi, objected to the proposal, arguing that since Chyawanprash is regulated under the Drugs and Cosmetics Act, a compliant product cannot be termed as ordinary.
Justice Shankar orally remarked, “Today, comparative advertising is far beyond what was tolerable 30 years ago… Today, to some extent, you can even run down another person’s product, provided you don’t disparage the product. You can say ‘I’m the best’ and it is permissible because it is puffery… we don’t really think that because of the word ‘ordinary’, people who want Dabur Chyawanprash will stop taking Dabur Chyawanprash and will only take (Patanjali’s product).”
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Recording that Patanjali agrees to the use of the phrase ordinary Chyawanprash, the Delhi HC upheld the remaining aspects of the single judge’s order.
The bench clarified that Patanjali “shall make no reference to Chyawanprash containing 40 herbs or any other reference which would lead a consumer into believing that the comparison is with (Dabur)”.
The division bench disposed of the appeal with the modification.
