Delhi High Court Restrains YouTuber From Posting Disparaging Content Against 'BROCODE' Beverage

The Delhi High Court has restrained a YouTube channel 'Sipp_Smart' ran by influencer Praveen Aminigadda from publishing or circulating any content or video on social media which disparages the goodwill and reputation of alcoholic beverage brand 'BROCODE'.

Justice Tejas Karia directed the influencer to take down a YouTube video which claimed that Brocode is 'poisonous', 'deadly' and 'not fit for consumption.'

The Court directed Google LLC, which operates YouTube, to remove the impugned content, if the same is not taken down by the influencer.

“The Impugned Video published by Defendant No. 2 makes unsubstantiated allegations about the Plaintiff's Product 'BROCODE' portraying it as 'poisonous, deadly and not fit for consumption'. Defendant No. 2's references to the Plaintiff's Trade Mark 'BROCODE' combined with suggestive statements and partial disguising of the brand name, target the Plaintiff's Product 'BROCODE',” the Court said.

Justice Karia passed the interim injunction order in the suit filed by Indospirit Beverages Private Limited, which manufactures beverages under the mark “Brocode.”

The suit said that the brand referred to as 'B-CODE' in the impugned video of the influencer is 'BROCODE' with a few alphabets removed.

It was contended that the comment section of the Impugned Video showed multiple viewers identifying the product as 'BROCODE', confirming its association being drawn by the audience.

It was also submitted that the influencer disparaged the Product 'BROCODE' by directly advising viewers to avoid its consumption, stating: 'I have one thing to say about this drink. Avoid it as much as possible. If you want to drink it at any cost, then it's your choice.'

It was contended that such a categorical exhortation against Product 'BROCODE' amounted to a direct denigration on the beverage's reputation and goodwill.

The counsel appearing for Google LLC submitted that being an intermediary, it shall comply with the direction to take down the Impugned Video if an order is passed directing the influencer first to take down the content within fixed time.

It was submitted that Google LLC will take down the impugned video if the influencer fails to do the same.

Observing that Brocode made out a prima facie case in its favour, Justice Karia said that the documentary evidence including test reports and regulatory clearances from FSSAI and BIS prima facie established compliance with standards for safety and quality.

The Court said that the Impugned Video and its comment section further demonstrate that even with the partial disguising of the brand name, viewers are easily recognizing 'BROCODE' as the intended subject, resulting in direct injury to the Plaintiff's goodwill and reputation thereby constituting infringement of the Plaintiff's proprietary rights.

It added that the actions attributed to the influencer were detrimental to the distinctive character of the Plaintiff's Trade Mark 'BROCODE', considering the fact that the same is deployed for disparagement of a legitimate, lawfully marketed product.

The Court observed that if the Impugned Video remains accessible, the irreparable injury shall be caused to Brocode brand, market standing, and consumer trust.

“Defendant No. 2, its agents and representatives are restrained from publishing, circulating, uploading or otherwise disseminating on various social media platforms, including but not limited to its YouTube channel, the Impugned Video available at: https://www.youtube.com/shorts/R44LARAfs4w or any part thereof, or any other video in any language or in any manner, disparaging the goodwill and reputation of the Plaintiff and its Product 'BROCODE' and also causing infringement of the Plaintiff's Trade Mark 'BROCODE',” the Court said.

It added that the Plaintiff will be at liberty to notify YouTube in case the influencer in question uploads, publishes, circulates, or disseminates any video identical to the Impugned Video on his YouTube channel.

“Upon such notification by the Plaintiff, along with the specific URL of such video/s, Defendant No. 1 shall, within 72 hours of such notification, take down, remove and disable access to the concerned video/s. If Defendant No. 1 is of the opinion that the notified URL is not identical to the Impugned Video, Defendant No. 1 shall communicate the same to the Plaintiff, who is at liberty to approach this Court for appropriate directions,” the Court said.

Counsel for Plaintiff: Mr. Ankur Sangal, Mr. Aditya Ganju, Mr. Ankit Arvind, Ms. Shilpi Sinha, Ms. Priyanka Jaiswal, Mr. Samanyu Sethi and Mr. Sahil Safdar, Advocates

Counsel for Defendants: Mr. Aditya Gupta, Advocate for D1

Title: INDOSPIRIT BEVERAGES PRIVATE LIMITED v. GOOGLE LLC & ANR

Click here to read order