The Bombay High Court has restrained the circulation of a Berger Paints advertisement after observing that it prima facie crossed the line from comparative advertising into product disparagement involving Asian Paints.
The ad interim order was passed by Justice Arif S. Doctor in a commercial intellectual property suit filed by Asian Paints against Namgial Enterprise and others, including Berger Paints India. According to court proceedings, Asian Paints alleged that a 102 second promotional video ‘Drishyam Series – Episode 1’ was being circulated through WhatsApp groups involving paint dealers and trade members before also appearing on Instagram.
Asian Paints argued that the advertisement compared Berger Easy Clean paint with its Apcolite Shyne All Protek product through a stain removal demonstration. Although the company’s name was not directly mentioned in the narration, the product container was allegedly displayed prominently enough to make the identity of the rival brand identifiable.
The company further objected to a portion of the advertisement in which a meme appeared with the Hindi phrase ‘Arre Saala, alag hi fraud chal raha hai,’ followed by the word “Fraud!” after the stain test sequence. Asian Paints submitted before the court that the advertisement portrayed Berger’s product as stain resistant while depicting its own product as ineffective, amounting to disparagement and slander of goods.
Justice Doctor, while granting interim relief, observed that a ‘clear case of disparagement’ had been made out. The court also took note of Asian Paints’ concerns that additional advertisements could follow because the video was titled “Drishyam Series – Episode 1.”
In the order, the court stated, “Also, the fact that the impugned advertisement is titled ‘Drishyam Series – Episode 1’ justifies the serious apprehension of the Plaintiff that more such disparaging advertisements may follow soon.”
The court further observed, “Hence, there is merit in the apprehension that the circulation of the impugned advertisement through WhatsApp and social media platforms has the potential to cause immense and irreversible prejudice to the goodwill and reputation of the Plaintiff and its said product.”
The Bombay High Court restrained the defendants and unidentified parties from circulating, sharing or broadcasting the advertisement or similar material and directed that the video be removed from social media platforms where it had been uploaded. The matter is scheduled to be heard next on June 22, while the interim order will remain in force until June 23.
