By Priya Adlakha and Tanvi Bhatnagar
Recently, Dabur India Ltd. (inter-alia Plaintiff), a well-known FMCG Company, which sells packaged fruit juices under the brand ‘REAL’, being aggrieved with a YouTube video uploaded by a famous YouTuber Dhruv Rathee, which allegedly led to advertisement disparagement and denigrated packaged fruit products and specifically targets Plaintiff’s brand REAL, approached the Hon’ble Calcutta High Court for protection of its intellectual property rights. The Hon’ble Court passed an ad-interim order in Dabur’s favour, directing the intermediaries to delete/block access/remove the said video. The brief background of the matter is discussed below:
Brief Facts of the Case:
Plaintiff claimed to be one of the largest FMCG manufacturers and distributers, under its house mark ‘DABUR’. It manufactures and sells fruit juices and ready to serve beverages under the brand name ‘REAL’. Plaintiff is the registered proprietor of the trade marks ‘REAL’, ‘REAL FRUIT POWEDER’, ‘FRUIT POWER’, ‘REAL ACTIVE’ in class 32 and claimed huge goodwill and reputation in the Indian as well as international market.
Dabur claimed that the 21 minutes 59 seconds video uploaded by Dhruv Rathee on his YouTube channel (having 10.5 million subscribers) on February 14, 2023, makes unfair comparisons between carbonated soft drinks and RTS fruit beverages as well as between fresh fruit juices and RTS fruits beverages. The video claimed that consumption of packaged fruit juices leads to type 2 diabetes and hair loss, and advice not to consume the same and strongly recommend not to give it to children. Therefore, the overall impact of the impugned video is to generically disparage all packaged drinking fruit juices.
Grievances of Dabur includes that the impugned video makes a clear and direct reference to its ‘REAL’ brand fruit juices, though, the registered trade mark/logo are deliberately partially blurred. Hence, it directly targeted Dabur’s product to tarnish its reputation. In the impugned video, Dhruv Rathee has also shown images, which used Dabur’s TVCs, therefore, the product shown in the impugned video is easily relatable by the consumers at large to Dabur’s REAL fruit juices.
Dabur sent a take-down request dated February 15, 2023, to the Respondent No. 2 (one of the intermediaries), however, it was refused.
Observations made by the Court
Balance to be maintained between consumers to be made aware vis-a-vis right of any manufacturer not to be ridiculed
After hearing the submissions of the Petitioner’s counsel, the Hon’ble Court made the following observations:
• Interests of the consumer and the public must be safeguarded and respected. Dissemination of information through any medium or platform is a modern-day reality and the only caution which a Respondent ought to bear in mind is whether the publication falls within the four corners of the law. There has to be balance between consumers to be made aware vis-a-vis the right of any manufacturer not to be ridiculed.
• The principle of freedom of expression as enshrined in Article 19(1) (a) of the Constitution, protects both information and ideas. The obstruction to free speech, expression, creativity and imagination is restricted only to the limited extent as enshrined in Article 19(2) of the Constitution.
• The product of the petitioner Real has been repeatedly targeted both overtly and covertly in the impugned video and is easily relatable to the Plaintiff’s brand REAL.
• The impugned video violates Section 29 (9) of the Trade Marks Act, 1999 and the Copyright Act, 1957, by way of unauthorized use of the packaging, label and logo of Plaintiff’s product REAL.
• Even though at ad-interim stage the underlying intent of the impugned video may not be objectionable, in making repeated direct and brazen references to the product Real of the Petitioner, the Lakshamanrekha or the Rubicon has been crossed.
Therefore, vide order dated March 15, 2023, Dhruv Rathee was permitted to air, circulate or upload the impugned video only after removing the offending portions from the impugned video, which makes reference to the Plaintiff’s product REAL within 7 days from the date of communication of the order and he was further directed to not make any use of the trademark, copyright content, trade dress, packaging label and logo of the Plaintiff’s REAL brand of product. The Hon’ble Court also recorded that in default, appropriate orders will be passed against the intermediaries i.e., Respondent Nos. 2 to 4, to block the impugned video. The matter was thereafter fixed for hearing on March 22, 2023.
Hearing on March 22, 2023:
Despite being served, Dhruv Rathee neither complied with the Court order not entered appearance in the Court and the impugned video continues to air on the social media platforms, which belong to Respondent Nos. 2 to 4.
Therefore, the Hon’ble Court while passing a default injunction order against Dhruv Rathee, held that it is the plain and unqualified obligation of any person against or in respect of whom an order is made by a Court, to obey the same unless and until the order has been set aside, modified or varied. The uncompromising nature of this obligation is fundamental to the Rule of Law. Therefore, Respondent Nos. 2 to 4 were directed to take down/ remove/ block and restrain access to the impugned video from all the URL/ Web Links insofar as they are in control and domain of the Respondents. While passing the said order against intermediaries, the Hon’ble Court took note of the Notification dated February 25, 2021, issued by the Ministry of Electronics and Information Technology notifying the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. It is pertinent to mention here that as per Rule 3(d) of the said Rules, the intermediary is obliged to take down the impugned content on receipt of actual knowledge of a court order among others.
Liberty was also granted to the Plaintiff to approach the Court in case any other URL/ Web links which contain/publish/ broadcasts the impugned video comes up.
It is noteworthy that in Abhijeet Bhansali v. Marico Limited, the Division Bench of the Bombay High Court dealt with the question of law concerning the freedom of expression and stayed the order passed by the Single Judge, vide which Learned Single Judge held that video uploaded by the Defendant, who was a social media influencer, was disparaging and disintegrated Marico’s Parachute Oil. In the posted video, Defendant made direct comparisons between Marico’s ‘Parachute Oil’ and another ‘organic’ coconut oil and had conducted ‘tests’ of these two oils in order to compare them and claim that the Parachute oil is of inferior quality.
The Division Bench of the Hon’ble Bombay High Court observed that if a person asserts a matter of fact, he cannot be restrained from expressing himself, and law does not so permit. But with respect to opinions and subjective issues, which cannot demonstrably be shown to reveal the facts on which opinions are based, then a different yardstick applies. If the statement is per se defamatory, an injunction must follow. However, eventually Abhijeet Bhansali, himself agreed to retract few statements from the video, which was allowed by the Court.
Dhruv Rathee in the impugned video has stated he is giving a critique of ‘packaged fruit juices’ and made reference to the nutritional information and ingredient list shown on the packaged fruit juices in order to educate his audience about the harms of such added sugars, flavours, etc. while relying on scientific evidence like the expert opinion. Moreover, Dhruv Rathee has also made a disclaimer specifying that he does not aim to target one specific brand, and the information provided applies to all brands alike. However, we do not see these points being discussed in the Calcutta High Court order.
It will be interesting to see the defence of Mr. Rathee before the Hon’ble Calcutta High Court, if he chooses to enter an appearance.
 2020 SCC OnLine Bom 265