[This post is co-authored by Samridhi Chugh and Manya Gupta. Samridhi is a final-year student at the Campus Law Centre, Faculty of Law, University of Delhi, and a graduate in Journalism from Lady Shri Ram College for Women. Her previous posts can be accessed here. Manya is a fourth-year student at the National Law University, Delhi. Note for the readers: The matter is listed for today before the Delhi High Court.]
The Delhi HC appears to be on a spree, granting interim injunctions in circumstances regarding trademark disparagement (see right here and right here), with posts by social media influencers and content material creators now additionally below the radar of such actions. Mondelez, the corporate behind “Bournvita” and “Tang” is the newest recipient of this safety towards posts by social media influencer Revant Himatsingka, who goes by the username “FoodPharmer”. Mondelez had alleged that FoodPharmer was disparaging its trademark in additional than 150 posts on their social media accounts, in search of an ex-parte ad-interim injunction for his or her removing. On October 15, 2024, the Single Decide Bench of Justice Amit Bansal granted the sought interim injunction restraining FoodPharmer from “issuing/importing/telecasting any movies/publication/posts in any language or any medium disparaging any of the merchandise/manufacturers of the plaintiffs.” Later, on October 23, the Courtroom, in a clarificatory commentary, stated that the above injunction was to not be interpreted as a gag order on the influencer; which means thereby that the influencer may nonetheless make factual assertions concerning the plaintiff’s merchandise however couldn’t disparage them.
Incessantly up to now, SpicyIP bloggers (as an example, Swaraj and Praharsh) have tried to flag the variety of challenges posed by the unwitting grant of interim injunctions, particularly these which are handed ex-parte. The Supreme Courtroom in Ramrameshwari Devi v. Nirmala Devi (2011) additionally laid down pointers for the grant of ex-parte interim injunctions, noting their potential of wreaking havoc in getting them vacated. On this submit, we additional our inquiry by inspecting the problems posed by the interim injunction within the current case. We additionally delve into the aforesaid clarification issued by the DHC, which, opposite to expectations, seems to have made the query of disparagement much more tough to delineate.
Unreasoned Ex-Parte Injunctions: Crusing by means of Troubled Waters?
The impugned content material, originating in 2023, adhered to a constant format generally employed by the influencer in his different exposés on related nutrition-specific points. These posts and reels sometimes started with an in depth breakdown of the product substances, accompanied by crucial commentary, alleging that the plaintiff manufacturers misled shoppers with claims of being wholesome. As reported right here and right here, the influencer’s central argument particularly focused Bournvita’s market positioning as a well being drink and Tang’s illustration as a fruit-flavoured beverage combine fortified with nutritional vitamins and minerals. Amongst different sharp criticisms, among the later-removed posts accused Bournvita of utilizing caramel colouring alleged to be carcinogenic and primarily condemned the merchandise’ excessive sugar content material. They additional questioned the misleading advertising of those merchandise, significantly given their concentrate on kids as the first shopper base.
On October 15, the Courtroom, referring to “varied different orders handed by co-ordinate benches… injuncting the defendant from posting defamatory movies regarding different manufacturers” (para 29), restrained the influencer from additional issuance of any disparaged content material towards the plaintiffs, with the choice on the takedown of current posts deferred for the subsequent date.
The Courtroom noticed that the plaintiff had fulfilled all necessities of the three-step check for the grant of an interim injunction below Order XXXIX, Rule 3 of the CPC — the making out a “prima facie case” and the stability of comfort of their favour, with the foreseeable potential of irreparable hurt to their status if the defendant was permitted to hold on posting the disparaging posts and movies (Para 31). A perusal of the order makes it clear that the Courtroom didn’t pay an in depth heed to the details particular to the current case and tried to impose a one-size-fits-all strategy in establishing the prima facie case in favour of the plaintiffs. The complete ‘rationale’ underlying the impugned order appears to have been captured within the above single paragraph, with none evaluation of the content material of the impugned posts vis-à-vis the hurt being induced, or any prima facie examination of infringement.
The injunction appears tendentious contemplating its ex-parte nature, contrasting the observations of this Courtroom in Dabur India v. Emami Ltd. (2023) by which it emphasised on granting defendants the time to answer. Whereas the Dabur order was later up to date with a qualification, the requirement of granting time nonetheless stands until “sure public and business pursuits are harmed.” What, nevertheless, may comprise these pursuits is a thriller, as mentioned right here. Within the meantime, the requirement to grant time was additional reaffirmed in Silvermaple Healthcare Providers v. Dr. Ajay Dubey (2023) by which the DHC apart from granting the defendants the time to file reply additionally devoted 15 pages to its reasoning on why the injunction check was not made out.
Additional, it’s value noting that the grant of an ex-parte injunction goes towards the judicial logic of measuring the stability of comfort after contemplating the legit claims of each the edges. This has additionally been affirmed by this Courtroom in Shenzen Oneplus Know-how Co Ltd v. Micromax Informatics Restricted (2014) as, “…A fragile stability needs to be struck between the precise of the plaintiff and the precise of the defendant…Provided that a Courtroom had been to seek out that so grave and so irreparable is the harm that even a day’s delay can’t be brooked, and so robust is the prima facie case made out, solely then would a Courtroom be justified in granting an ad-interim injunction.”
The shortage of a radical reasoning is very problematic within the current case owing to its attention-grabbing historical past. The impugned video primarily led to Mondelez slashing the sugar content material of Bournvita by 14.4%. It additionally led to the influencer incomes the tag of the person who compelled India to learn dietary labels. Additional, submit these developments, the Ministry of Commerce and Trade directed e-commerce companies to take away all drinks and drinks, together with Bournvita, from the ‘well being drinks’ class from their platforms and portals. The Ministry additionally clarified that there a “well being drink” was not outlined below the Meals Security and Requirements Act, 2006, and, thus, reiterated an earlier stance of the FSSAI that the categorisation of such was deceptive. Contemplating the bigger well being implications of the questioned labelling, in addition to the next occasions which added weight to the influencer’s arguments, the necessity for a deeper inquiry into the veracity of the claims by the Courtroom mustn’t have been missed. For Mondelez to later pray for the digital erasure of the submit that it had earlier impliedly accepted as true, indubitably deserved a point of scrutiny by the Courtroom.
The Unsure Method for Trademark Disparagement
The event, sarcastically, turned additional convoluted owing to the aforesaid clarification supplied by the Courtroom on October 23, that the stated injunction was to not be interpreted as a “gag order” towards the defendant-influencer. This, inferentially, permitted him to supply non-disparaging factual assertions towards the plaintiffs. Coming as a response to a request for a clarification by the defendant’s counsel on the efficient sensible contours of the order, the entire import of this commentary stays unclear. At first look, this clarification seems to reconcile the necessity to defend the plaintiff’s trademark with the defendant’s proper to free expression. On deeper inquiry, nevertheless, it raises questions concerning the standards used to distinguish between permissible factual assertions and impermissible disparagement, which stay undefined. With out clear boundaries, the influencer faces uncertainty about what constitutes a breach of the injunction, probably resulting in over-caution or additional litigation.
That is necessary, given the institution of a prima facie case being the primary requirement, the Courtroom should analyse whether or not there may be disparagement. The actual fact of the impugned content material being false is an important of trademark disparagement as recognised by the Supreme Courtroom in its judgments in Tata Press Restricted v. Mahanagar Phone-Nigam Restricted (1995), Colgate Palmolive (India) Ltd v. Hindustan Lever Ltd (1999), amongst others. The Delhi Excessive Courtroom itself, within the case of Dabur India Ltd. v. M/S Colortek Meghalaya Pvt. Ltd. (2010), relied on the above precedents to affirm falsity of speech as a prerequisite for the institution of claims of disparagement. It went thus far to say that even puffed up or “off the cuff” business speech could also be impermissible if it had been to be made with out the load of some affordable factual substance.
The clarification, too, implicitly reiterates that non-disparaging factual statements aren’t prohibited. Nonetheless, it leaves unanswered the query of creating such falsity of the statements within the first place, thus complicating real-time implications in addition to the resultant enforcement of the arising injunctions. This makes one marvel about two points. Firstly, the burden of proof for the institution of disparagement is totally on the plaintiff, and never the defendant. Is it doable that the clarification mandating the defendant-influencer from expressing something supposedly “non-factual” will be interpreted as shifting the evidentiary onus? Secondly, the next check to affirm disparagement being that of “precise malice” additional requires a radical inquiry into whether or not the defendant acted with “a reckless disregard for reality,” as highlighted by Prashant Reddy. Nonetheless, establishing reality amid conflicting scientific proof, knowledgeable opinions or anecdotal shopper experiences submitted from either side sparks a probably countless debate over credibility and evidentiary worth.
On the contrary, the injunction restraining the defendant from “disparaging” the plaintiff turns into troublesome given the absence of factual proof behind Mondelez’s personal claims of being a well being drink and its failure to counter the query of excessive sugar content material. The DHC in Dabur v. Promoting Requirements Council of India (2023) emphasised the necessity for the next customary of scrutiny for claims of well being advantages made in relation to meals merchandise, which may pose challenges for Bournvita in future. Studying this with the edge of factuality for the claims of disparagement locations an onerous burden on the defendant to self-censor whereas additionally leaving room for potential misuse of the injunction by the plaintiff to stifle criticism. The image, thus far, stays unclear within the context of the affect it might have on content material creators from a freedom of speech lens. The close to absence of a talking order in granting the unique injunction, coupled with a ‘clarification’ that seems to confound greater than make clear on the contours of permissible and impermissible actions, has made issues tough for the defendant-influencer. That is evident from the truth that in a listening to on November 15, regardless of the absence of any adversarial order by the Courtroom, the counsels for the influencer volunteered to request podcaster Ranveer Allahbadia to take down any disparaging references to Mondelez’s merchandise from his podcast with him, as out there on YouTube. It will be attention-grabbing to see how the DHC navigates the way in which ahead because the matter awaits its subsequent scheduled listening to on November 27.