“Can You Use Word 'Dhoka'?” Delhi High Court Questions Patanjali Over Chyawanprash Ad In Dabur's Disparagement Plea

The Delhi High Court on Thursday questioned Patanjali Ayurved over its TV commercial calling other Chyawanprash products, except its own, as “dhoka”, which means fraud.

Justice Tejas Karia queried that while calling other Chyawanprash products as ordinary or inferior is permitted, but will calling them as “dhoka” not amount to disparaging?

The Court reserved order on the plea filed by Dabur India seeking interim injunction against the impugned advertisement.

Dabur India is aggrieved by the 25 seconds advertisement issued by Patanjali titled “51 herbs. 1 truth. Patanjali Chyawanprash!”

In the impugned advertisement, a female protagonist is seen feeding a Chyawanprash to her kid saying “chalo dhoka khao.” The yoga guru Baba Ramdev thereafter says “adhikansh log Chyawanprash ke naam par dhoka kha rahe hain.”

During the hearing today, Senior Advocate Sandeep Sethi appearing for Dabur India said that the words “dhoka khao”, which amounts to consuming fraud product, were ex facie disparaging as Dabur is more than 60% market holder of Chyawanprash.

“Chyawanprash is an ayurvedic medicine under the Drugs and Cosmetics Act. The Act sets out which scriptures to be followed for Chyawanprash, the formulation and ingredients. Unless you follow these, you won't get a license.…. Every manufacturer is a person who follows the Act, scriptures and is duly licensed of the business. I am more than 60 percent market holder of Chyawanprash market. The words used are “chalo dhoka khao” and “adhikansh log Chyawanprash ke naam par dhoka kha rahe hain.” This means most of the people are having dhoka in the name of Chyawanprash. This is ex facie derogation,” Sethi said.

He added that by the impugned advertisement, all other Chyawanprash except Patanjali's product, as a class of products, was being referred to as deceptive. Sethi said that if Patanjali was responsible, they should have name the specific person in the advertisement.

“They are referring to entire gamete of Chyawanprash manufacturers and sellers. And particularly me because i am the biggest market leader. The conduct of the defendants not only targets me…. It is not the isolate incident of the defendants calling someone dhoka, it is a specific design to create a communal divide only to sell their products,” Sethi said.

He added that calling other products as dhoka is per se disparaging and that Patanjali has painted every one as being fraud by saying that others selling Chyawanprash is a dhoka.

“Coming from a self proclaimed yoga guru is far more serious. People seek to identify a yoga giri with some sense of truthfulness,” he added.

“All this is being done to create panic. These advertisements in the last five to seven days have 9 crore views. That is how sensitive people are,” Sethi said.

On the other hand, Senior Advocate Rajiv Nayar appearing for Patanjali Ayurved said that the impugned advertisement is an extension of an earlier advertisement, adding that by using the word dhoka, all that was being said was that Patanjali's Chyawanprash was best in the markets while others are ordinary.

On this, Justice Karia asked: “Ordinary or special and dhoka is different. Here the question is you are calling all other Chyawanprash other than you ask dhoka. Dhoka is a negative word. The word in hindi means fraud.”

Nayar responded that by using the said word, Patanjali is not saying that other products are fake or spurious, it was saying that they are bad and ineffective as compared to its Chyawanprash.

“I have not referred to him at all. All i am saying is that apart from me, all other Chyawanprash are ineffective. Puffery is admitted. When a product is not targeted, injunction never follows….,” Nayar said.

He added: “Dhoka is a manifestation of ordinary. All I am saying is all other Chyawanprash are inferior in comparison to mine which I am entitled to say.”

To this, the judge said: “The way you express is also very important. You can say ordinary or inferior whatever…. You are not comparing that is the problem. You are disparaging. Effect may be in person's mind. What we have to see is where are the boundaries. It is a border line case where you are crossing boundaries by saying everyone else is dhoka. You ca call someone ordinary but you cannot call someone bad and automatically you become good. Inferior and fraud have different meaning. You can say inferior but you cannot call them fraud. You can say 51 jadibuti but why call the products dhoka? Is it not comparison?”

To this, Nayar said that Dabur wants a readjudication of the issues between it and Patanjali as it did not succeed in the earlier round of litigation over other advertisements.

After hearing both the sides, the Court proceeded to reserve order on Dabur's interim injunction plea.

Earlier, a single judge had in its July order allowed the interim applications filed by Dabur India Limited against the advertisements ran by Patanjali and directed the latter to delete the first two lines of an advertisement, i.e., "Why settle for ordinary Chyawanprash made with 40 herbs?"

It had also directed Patanjali to delete from the TV commercial the line i.e., “Jinko Ayurved aur Vedo ka gyaan nahi, Charak, Sushrut, Dhanvantri aur Chyawanrishi ki parampara ke anuroop, original Chyawanprash kaise bana payenge?". Against this Patanjali approached division bench. 

Later, the division bench disposed of Patanjali Ayurved's appeal while directing it to remove reference to Chyawanprash "made with 40 herbs".  

Title: Case title: PATANJALI AYURVED LIMITED & ANR v. DABUR INDIA LIMITED