Can Supreme Court be the pain reliever?
Recently the two popular pain relieving ointment brands Zandu Balm and Moov have been in the news . The manufactures of Moov have filed an appeal in the Supreme Court against the decision of the Kolkata High Court, in a disparagement suit.
It is all started with the TV commercial launched for the promotion of the product “MOOV”. In the course of the advertisement, ‘2X’ flashed on the screen with a voice over claiming that Moov had double the number of active ingredients present, compared to the “leading pain reliever”. Emami Limitied (manufacturer of Zandu Balm) claimed that the controversial advertisement had been actuated by malice and injurious falsehood, which caused damage to the goodwill of Emami and its product Zandu Balm. Subsequently, Emami Limited filed a suit, contending the advertisement to be disparaging to it product ‘Zandu Balm’, for which they also hold a registered trademarks.
Reckitt Benckiser (manufacturer of ‘Moov’) took the defence of truth and claimed that airing the advertisement was permissible under law. They claimed protection under Articles 19 (1) (a) and 19 (2) of the Indian Constitution and S. 30 of the Trademarks Act, 1999. It was also argued that Fundamental Rights cannot be stopped by way of an injunction.
Emami presented its case, stating the freedom granted under Article 19 of the Indian Constitution is not unfettered and is subject to reasonable restrictions. It was further submitted that the comparison in the ad should not be made with malice.
The main issue that was identified by the Kolkata High Court was whether the comparison which was made by Reckitt Benckiser is a fair and truthful comparison or not.
The High Court was of the opinion that a comparison was indeed made between Moov and Zandu Balm in the impugned ad and as no clarification was issued as to how Moov was better than Zandu Balm, it could be a source of confusion among the general public. The decision was made in favour of Emami.
An appeal against the Calcutta HC Judgment has been made by Moov in the Supreme Court, which is slated to be heard in the second week of February.
Authored by Nidhi Jhawar.