In a matter involving comparative advertising, the Delhi High Court confirmed that advertisement is a facet of commercial speech and even a corporate entity is protected under the freedom of speech, being a fundamental right. Further discussing the test of honesty, the Hon’ble High Court further clarified that the objective of Section 29(8) and 30(1) of the Trade Marks Act, 1999 (hereinafter the ‘Act, 1999’) is to allow honest comparative advertising and a failure of one party to point out a competitor’s advantages is not necessarily dishonest.

The Defendant, Heinz had published an advertisement for its COMPLAN brand product in newspapers comparing one cup of its health food drink COMPLAN with two cups of the Plaintiffs’ product HORLICKS, and had a disclaimer stating that “One cup of Complan (33g) gives 5.94g of protein while two cups of Horlicks (27*2 = 54 g) Gives 5.94 g of protein basis recommended pack dosage ..”. Horlicks, thereafter, filed the instant case seeking damages and permanent injunction restraining infringement, disparagement and unfair trade practices against Heinz on the ground that the advertisement wrongly stated that the amount of protein in the COMPLAN was double the amount of protein in the HORLICKS.

Plaintiffs alleged that the Defendant had manipulated the serving size of its product to have double the protein of HORLICKS and that the comparison of only one parameter based on serving size was in violation of the CODEX Guidelines for Use of Nutrition and Health Claims. Plaintiffs further submitted that the advertisement being unfair, contrary to honest industry practices and detrimental to the distinctive character of its trademark HORLICKS was also violative of provisions of the Act, 1999. It further alleged that the Defendant’s tagline “From now on, only Complan” sought rejection of HORLICKS over COMPLAN and attacked the most essential attribute of HORLICKS, i.e. its nutritional content. The Plaintiffs also submitted that the fundamental right to freedom of speech under Article 19(1)(a) of the Constitution was only available to a citizen of India and not to a corporate entity like the Defendant.

Nonetheless, ruling in favour of the Defendant, the Hon’ble High Court confirmed that advertisements were a facet of commercial speech and a corporate entity was entitled to protection under Article 19(1)(a) of the Constitution. The Hon’ble Court observed that ‘in comparative advertising a certain amount of disparagement is implicit, yet the same is legal and permissible so long as it did not mislead’. Emphasising that the concept of ‘per serving’ size was well recognised, not only in the industry but also under the statute and that the Plaintiffs themselves used the ‘per serving’ size on their packaging to ensure the safe consumption of their products, the Hon’ble Court observed that the Defendant has not manipulated its serving size, which had been constant since 1934 and the impugned advertisement comparing a material, relevant, verifiable and representative feature of the products in dispute was in fact factually correct and not in violation of the CODEX Guidelines.

The Hon’ble Court also noted that the Defendant was not obliged to compare all the parameters and clarified that ‘it [was] open to an advertiser to highlight a special feature/characteristic of his product which would set its product apart from its competitors and make a comparison with other products, as long as it is true’. The Hon’ble court observed that the test of objective use is an objective test which depends on whether the use is considered honest by  members of a reasonable audience and a mere failure to point out a competitor’s advantages is not necessarily dishonest and accordingly, held that the impugned advertisement was not violative of the provisions of the Act, 1999 as the use of the mark HORLICKS remained a source indicator of the Plaintiff’s product. Finally, rejecting the Plaintiffs’ allegations of disparagement against the Defendant’s tagline, the Hon’ble Court noted that in determining the meaning of an advertisement, the Court has to take in to account the fact that public expects a certain amount of hyperbole in advertising and the test to be applied is whether a reasonable man would take the claim being made as one made seriously.