Bombay High Court Restrains Circulation Of Berger Paint Ad Suggesting Asian Paints Product Was A 'Fraud'

The Bombay High Court has restrained the circulation of a Berger Paints advertisement comparing its Easy Clean product with an Asian Paints paint, after finding a prima facie case of product disparagement and flagging a meme in the clip that exclaimed “Fraud!”.

Justice Arif S. Doctor held that a “clear case of disparagement” was made out.

The ad-interim order was passed on May 8 in a commercial intellectual property suit filed by Asian Paints Limited against Namgial Enterprise and others, including Berger Paints India Limited.

Asian Paints told the court that on May 5, its representatives informed the company's senior manager (legal) that a 102-second video titled Drishyam Series – Episode 1 was being widely circulated in WhatsApp groups comprising paint dealers and trade members.

The company later found that the same video had also been uploaded on Instagram.

According to Asian Paints, the advertisement compared its APCOLITE SHYNE ALL PROTEK paint with Berger's BERGER EASY CLEAN. Though the narrator did not name Asian Paints, its product container was shown prominently beside Berger's product, making the rival product's identity unmistakable.

Asian Paints argued that the video portrayed Berger's product as genuinely stain-resistant while depicting its own product as merely washable and ineffective through a lipstick stain demonstration.

Asian Paints also objected to the portion immediately following the demonstration, when the video inserted a meme showing shocked individuals reacting to the Hindi phrase “Arre Saala, alag hi fraud chal raha hai,” followed by the exclamation “Fraud!”

It argued that this crossed the permissible limits of comparative advertising and amounted to disparagement and slander of goods.

Justice Doctor specifically noted this aspect while finding a prima facie case in Asian Paints' favour.

Asian Paints also argued that the overall presentation of the advertisement was intended to sensationalize the comparison and undermine consumer confidence in its product, pointing to the dramatic opening and the framing of the clip as a “myth buster.”

The court agreed that the advertisement, viewed as a whole, made out a case of disparagement.

Asian Paints further expressed concern that more such advertisements could follow, since the clip was titled Drishyam Series – Episode 1.

Accepting this concern, the court observed: “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. 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."

Seeking urgent relief without notice to the defendants, Asian Paints argued that prior warning could lead to wider circulation of the video through WhatsApp groups and social media before any restraint order could be passed.

The court accepted this submission, holding that prior notice would defeat the purpose of urgent relief given the manner in which the advertisement was being circulated.

The court restrained Namgial Enterprise, the other identified entities behind the advertisement, and unidentified persons arrayed in the suit from circulating, sharing, broadcasting, or otherwise communicating the impugned advertisement or any similar disparaging material and directed them to take down the video wherever it had been uploaded.

The social media platforms arrayed as Defendant Nos. 5 and 6 were directed to delete the advertisement.

The matter will next be heard on June 22. The ad-interim order will remain in force until June 23.