Marico Limited v Abhijeet Bhansali

Introduction

The rapid expansion and commercialization of the Internet have brought forth novel legal disputes which challenge the conventional principles and precedents which apply to them. The present matter is an example of just that.

Facts of Marico Limited v Abhijeet Bhansali

Marico Limited, the plaintiff’s most well-known trademarks are PARACHUTE under which it markets inter alia its edible coconut oil.

1. The defendant on his YouTube channel named “Bearded Chokra”, uploads videos wherein he reviews products of various manufacturers.
2. The defendant published a video titled “Is Parachute Coconut Oil 100% Pure?”. In this video, the defendant reviewed the plaintiff’s PARACHUTE coconut oil.
3. It is the plaintiff’s case that in the Impugned Video the defendant makes claims and statements concerning the plaintiff’s PARACHUTE edible coconut Oil, which are false and unsubstantiated.
4. The plaintiff stated that on the whole, the Impugned Video was disparaging and denigrating in nature.
5. The plaintiff through its Advocates sent an email to the defendant whereby the defendant was called upon to cease publishing or in any manner communicating the Impugned Video to the public and calling upon him to remove the Impugned Video from social media sites including his YouTube channel.
6. The defendant replied to the Plaintiff’s advocates defending his video and also proposed to re-make / modify and/or delete portions of the Impugned Video subject to certain conditions stated therein.
7. The defendant sent another email to the Plaintiff’s advocates stating that he is expecting a response from the plaintiff.
8. The plaintiff, through its Advocates, replied with a holding email stating that the contents of the defendant’s emails were being considered by the plaintiff and called upon the defendant to remove the Impugned Video in the meantime. The defendant refused to comply with the aforesaid request of the plaintiff stating that he had a right to voice his opinion.
9. The plaintiff filed the present suit and on 13th February 2019, the plaintiff made an application for urgent ad-interim reliefs.
10. The plaintiff inter alia prayed for an injunction against the defendant, restraining him from

• Publishing or broadcasting or communicating to the public the Impugned Video,
• Disparaging or denigrating the plaintiff’s PARACHUTE COCONUT OIL product or any other product of the plaintiff or the plaintiff’s business and
• Infringing the registered trademarks of the plaintiff.

Issue Raised  in Marico Limited v Abhijeet Bhansali

• Whether the defendant made false, malicious or reckless statements;
• Whether special damages were suffered by the plaintiff.

Laws Involved in Marico Limited vs Abhijeet Bhansali

• Article 19(2) & 19(1)(a) of the Constitution of India;
• Consumer Protection Act 2019;

Arguments

Plaintiff’s Contentions

Defendant published the video with malicious intent to get more viewers. Impugned Video as a whole is disparaging and false in nature. Defendant promotes a competing product in the video in substitution for the product of Plaintiff and urges the viewers to stop using Plaintiff’s oil. The acts of Defendant fall under the category of commercial activities as well as attempts for seeking monetary donations/sponsors for his channel and not a general review.

The defendant was fully aware that the contents of the video constituted the tort of malicious falsehood and that for this reason, the Defendant offered to delete certain portions of the video (after issuance of legal notice) where he sought to make a comparison and also offered to make a completely fresh video after a re-evaluation of a fresh product of the Plaintiff.

Defendant’s actions satisfy all ingredients to constitute disparagement, slander of goods, and malicious falsehood. Special damage does not mean special in terms of quantum but special in the sense that the loss cannot be evaluated in money and that it is impossible to ascertain the nature of the damage.

Defendant’s Contentions

There was no malicious intent and the purpose of the video was only to educate viewers. Plaintiff has used a trick of showing a wet coconut alongside its product in order to fool consumers into thinking that its product was derived from wet coconut instead of copra.

Defendant’s offer to delete certain parts of the video was made as a concession to settle the dispute and was not an admission.

Upon buying products by clicking on the link mentioned by Defendant, Defendant receives a commission from the online site not the competitors of Plaintiff. However, Defendant’s recommendations and review videos in the past have been made without receiving any commission. Plaintiff uses the term ‘coconut oil’ when they are actually selling copra oil which is of inferior quality. Statements made by the Defendant in the Impugned Video are true and constitute bona fide opinion

Defendant has a fundamental right to freedom of speech.

Some of the words of the Defendant such as that the smell of the Plaintiff’s product is akin to ‘a dried or rotten coconut’ were used for exaggeration and were not to be taken literally. Plaintiff has shown no proof that its revenues have gone down since the video was uploaded. An action for disparagement/malicious falsehood/slander of goods can only be against a trader or a competitor.

Plaintiff’s Rejoinder

If the Defendant intended to create an educative video with the consumer’s interest in mind, Defendant should have approached any independent laboratory to conduct tests. Food Safety Standards Act, 2006 in Section 40 provides for a remedy whereby a Purchaser can have food analysed by a Food Analyst on payment of a fee.

Defendant’s rejoinder

The Learned Advocate for the defendant submitted that –

1. To hold that newspaper reports cannot be relied upon at the interim stage because they are hearsay would mean that virtually no document can be relied upon unless the author of the document is the deponent who has verified the pleadings.
2. At the interlocutory stage, the court must confine itself to the material which has been brought on record, without examining whether or not the same is proven.
3. To determine whether or not there is “malice” in a case it must be ascertained whether the defendant made the statement knowing that it is false or with reckless disregard as to whether it is true or false.
4. The defendant was not actuated by malice since he referred inter alia to the test prescribed by the reputed Dr Bruce Fife in evaluating the product of the plaintiff.

Judgement in Marico Limited v Abhijeet Bhansali

The court stated that the defendant being a ‘social media influencer’ bears a higher burden to ensure there is a degree of truthfulness in his statements and added that a social media influencer cannot deliver statements with the same impunity available to an ordinary person.

Whether the Defendant’s Statements are False?

A perusal of the video shows that except for the colour of the plaintiff’s oil in the liquid and frozen forms, the defendant has not mentioned or analysed any other details of the plaintiff’s product. Conversely, the defendant has omitted details of the products used by him to compare with the plaintiff’s product.

The nutritional value of Virgin Coconut oil and the plaintiff’s products are almost identical. The defendant has not conducted any independent tests to prove that there is a significant variance in the nutritional values of the products. The defendant did have the option of having the plaintiff’s product analysed under the Food Safety Standards Act, 2006. This would have shown the bona-fides of the defendant in giving the correct and true information about the product.

Falsehood on the part of the defendant is also evident from the fact that the only test conducted by the defendant to conclude that the plaintiff’s product is of inferior quality is ‘Freeze Test’. The plaintiff’s product is an Unrefined Expeller pressed Coconut Oil and not Virgin Coconut Oil. In the video, the defendant uses and shows the words ‘organic coconut oil’ for the other oil used by the defendant.

However, the defendant compares ‘virgin coconut oil’ with the plaintiff’s product. If the two oils used by the defendant for conducting the ‘freeze test’ did not belong to the same category i.e., ‘organic coconut oil’, the parameters of colour and particulate matter used by the defendant and the result based thereon would not only be inaccurate but also erroneous. The defendant has purposely and knowingly misrepresented to the viewers that he was comparing the plaintiff’s product with ‘organic coconut oil’ when in reality he was comparing it with ‘virgin coconut oil’.

Whether the Defendant’s Statements Were Malicious or Reckless?

In the impugned Video, the defendant has made use of forceful statements and thus has portrayed himself as an expert who has undertaken extensive research. The literature relied upon by the defendant pertains to gauging the quality of ‘Virgin Coconut Oil’ and is thus inapplicable to the present case.

The Article does not demonstrate how the discolouration in ‘Coconut Oil’ or a strong smell in ‘Coconut Oil’ is a sign of inferiority. The article does not refer to the colour of unrefined oils made from copra or that any inference is to be drawn in respect of colours of unrefined Coconut Oil.

In the context of oils made from copra, the article only mentions that the same may contain mould (fungus) but the same is not harmful in any nature or form. Thus, the article in no manner or form lends credence to the findings made by the defendant.

The defendant had no reason to believe that the statements he made were true since there is material concerning the plaintiff’s product to demonstrate that such belief was possible.  And thus, the defendant’s statements have been made with recklessness and without caring whether they were true or false.

Whether any Special Damages Were Caused to Plaintiffs?

The plaintiff has suffered special damages in the present matter as the Defendant’s video assumable has been liked by two thousand five hundred (2500) individuals and thus the impact of the video on the plaintiff’s reputation and damage caused to it cannot be underestimated.

The defendant has afforded no explanation for using the term ‘rotten coconuts’. Later in his video, the defendant has once again insinuated that the plaintiff’s product might be made from poor-quality coconuts. In an action for disparagement/malicious falsehood/slander of goods, it is irrelevant whether the defendant is a trader or not so long as the necessary ingredients are satisfied.

Fundamental rights cannot be abused by any individual by maligning or disparaging the product of others.

The Court accordingly directed the defendant to take down the video and remove it from YouTube and any other platform in any medium whatsoever.

A temporary injunction was granted against the defendant.

This article has been submitted by Dipita Pal of Surendranath Law College, Calcutta University.