He Can’t Openly Malign Product Recognised By Govt: Delhi HC Directs Social Media Influencer Prashant Desai To Take Down Videos Against ‘Complan’
The Delhi High Court has directed social media influencer Prashant Desai to take down videos against nutrition drink brand 'Complan'.
The Court was dealing with a suit filed by Zydus Wellness Products Ltd. against Prashant Desai along with an application seeking to restrain him and all those acting on his behalf from infringing upon/disparaging and/or denigrating the mark namely ‘COMPLAN’/ ‘COMPLAN PISTA BADAM’ registered in the plaintiff’s name.
A Single Bench of Justice Saurabh Banerjee observed, “Nobody, much less the defendant herein, merely because since he is a ‘Social Media Influencer’, under the garb of Article 19 of the CoI, can be entitled to claim to be under the shelter of freedom of speech and expression when he is saying something negative or attacking the plaintiff’s product ‘COMPLAN’. The defendant cannot be allowed to openly belittle, malign or vilify the plaintiff’s product ‘COMPLAN’ about something which has been recognised/ authorised by the Government of India. Allowing the defendant to do so would be against the very tenets of the established law as it would be against those very requisite authorisation(s), permission(s), approval(s), sanction(s) as applicable and in accordance with law including FSSAI or like obtained by the plaintiff from the Government of India for carrying on its business activities since long with respect to its product ‘COMPLAN’.”
The Bench added that a ‘Social Media Influencer’ like the defendant can only be free/ entitled to take recourse to Article 19 of the Constitution, if he would have acted verily, cautiously, carefully, and within the permissible precincts and not otherwise.
Advocate Sagar Chandra appeared for the plaintiff while Advocate Misha Rohatgi Mohta appeared for the defendant.
Factual Background -
On April 9, 2024, the plaintiff came across a video on the social media platform Instagram on the defendant’s profile. In that video, the defendant had allegedly made disparaging, defamatory, denigrating, and derogatory statements qua the product of the plaintiff under the registered trademark ‘COMPLAN’. The said impugned video was qua three types of products, (a) Bournvita/ Complan/ Horlicks; (b) biscuits and Cookies; and (c) Kelloggs or Cereals and the product of the plaintiff under the registered trademark ‘COMPLAN’ was one of them.
It was alleged that the defendant had made false, unsubstantiated, off the cuff, and misleading statements, contrary to what was contained in the instructions on the packaging of the plaintiff’s ‘COMPLAN’. Upon coming to know of the impugned video, the plaintiff requested the defendant via direct message on Instagram and LinkedIn to remove the same. Receiving no response, it issued a legal notice to him but there was no response of the same. The defendant has about one million followers on Instagram and 60,000+ followers on Facebook. The plaintiff contended that the users are being influenced by the false and misleading claims by the defendant. Hence, the suit was filed against him.
The High Court after hearing the contentions of the counsel, said, “The defendant is a qualified Chartered Accountant and Certified Management Accountant, holding a Bachelor’s degree in Commerce who has also completed certain courses like ‘Nutrition Science’, ‘Exercise Physiology’, ‘Health and Wellness: Designing a Sustainable Nutrition Plan’, ‘GG Pro’, on Glucose and is currently pursuing two other courses namely ‘Early’ and ‘Biomolecular Athlete’. Though the defendant claims to be, over the internet, motivating his viewers over issues related to health, fitness and lifestyle, however, none of them are ever talked about by the defendant in the impugned video.”
The Court noted that, despite being neither a Doctor nor a Nutritionist nor a Dietician and certainly not connected with the Health Industry in any manner whatsoever, the defendant, who is an outsider, he seems to comment upon the chemistry behind the composition of the plaintiff’s COMPLAN.
“Merely being a ’Social Media Influencer’, the defendant is not bestowed with the independence to speak and/ or comment about subject of which he is not the master”, it observed.
Furthermore, the Court said that the defendant, despite being a ‘Social Media Influencer’ cannot be permitted to identify and/or notify the plaintiff’s product ‘COMPLAN’ by directly naming it and by doing so in the impugned video, especially in more than one ways asking the members of general public to evade to have the plaintiff’s COMPLAN, he has directly targeted the plaintiff and its product COMPLAN, which cannot be permitted.
“In the present scenario, even though the defendant is neither a competitor nor a qualified Doctor/ Nutritionist/ Dietician, however, he has openly named, identified and criticised the plaintiff’s product ‘COMPLAN’ by starting the impugned video on a purely negative note by making unsubstantive and false statements therein. The contents/ statements therein are not backed by any substantive basis, even when they were uploaded and even as on date, therefore, the said contents/ statements made by the defendant therein are nothing short of being false, which is writ large”, it added.
The Court also remarked that, the defendant’s subsequent actions and comments are showing his intent of somehow portray to the general public that he cannot be questioned simply because he is a ‘Social Media Influencer’.
“… the final count, the uploading of the impugned video has caused the plaintiff to suffer special damages being a matter of trail need not be gone into by this Court at this stage. … The plaintiff has been able to make out a case for disparagement”, it said.
The Court, therefore, restrained the defendant, and all those acting on his behalf from publishing, uploading, issuing or telecasting, making available to view the impugned video or any part thereof and/ or in any language whatsoever and/ or any other video/ content/ post in any manner/ medium including but not limited to the electronic media, social media and/ or print media/ television/ radio so as to disparage and denigrate the plaintiff and/ or the plaintiff’s products sold under the brand/ trademark ‘COMPLAN/ COMPLAN PISTA BADAM’ and/ or any other brand/ trademark of the plaintiff, in any manner whatsoever as the actions of the defendant in the impugned video and forthwith amount to disparagement of the plaintiff’s registered trademark and the defendant.
Accordingly, the High Court disposed of the application and directed the defendant to take down the impugned video from all his social media handles forthwith, within a period of two weeks.
Cause Title- Zydus Wellness Products Ltd. v. Prashant Desai (Neutral Citation: 2024:DHC:7432)
Appearance:
Plaintiff: Advocates Sagar Chandra, Shubhie Wahi, and Ankita Seth.
Defendant: Advocates Misha Rohatgi Mohta, Naul Mohta, Munaf Virjee, Vidhi Gupta, Riya Dhingra, Puneet Pathak, Ayush Kashyap, Amulya Upadhyay, and Bharat Monga.
