Vimal Eliachi dragged to Court over surrogate advertising

Vimal Eliachi dragged to Court over surrogate advertising

About the Plaintiff: 

The plaintiff is a corporation formed under the Companies Act of 1956, and it is involved in selling elaichi (Cardamom) under the brand name ‘Vimal’ and other Vimal-branded items. The defendant in the present case is a government department working in the Government of NCT of Delhi under the State Tobacco Control Office. 

The advertisement and endorsement of the plaintiff’s product “Vimal Elaichi” (Cardamom) is done by famous Bollywood actor, Sh. Ajay Devgan. The original tagline for Vimal Elaichi’s ad campaign was “Dane-Dane Mein Kesar Ka Dum,” which was later altered to “Bolo Zubaan Kesari.” Both of these tag phrases emphasized the product’s saffron flavor. This elaichi product was first introduced in Gujarat and is currently being sold in more than 10 Indian states, including Delhi. The plaintiff intends to market the elaichi product in other Indian states. 

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Show-Cause Notice served to the plaintiffs:

The plaintiff placed advertising for “Vimal Elaichi” starring film actor Sh. Ajay Devgan in the newspaper ‘Times of India’ on March 1, 2018. Following that, the defendant provided the plaintiff with a show-cause notice dated 01.03.2018 under the Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act 2003. 

The notice stated that the plaintiff engages in surrogate advertising of ‘Vimal Gutka’ through a newspaper advertisement dated 01.03.2018. There was a reference to a prior notification dated 11.02.2016 in this notice. The defendants also referenced an earlier notice served to the plaintiff dated 11.02.2016, of which the plaintiff was not aware. 

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Plaintiff’s response:

The plaintiff responded to the notification in a letter dated March 8, 2018, stating that COTPA is irrelevant to the goods in issue. Further, the selling of ‘Gutka’ is prohibited across the country, according to the Hon’ble Supreme Court ruling. There can be no justification for surrogate advertising of the ‘Gutka’ because gutka cannot be marketed in the nation. The plaintiff has also presented various papers to back up its claim. The plaintiff’s main contention is that “Vimal Elaichi” does not contain any tobacco or nicotine in its entirety. 

Even the COTPA Act does not prohibit manufacturing any product that is not permitted for domestic consumption if it is only intended for export. Elaichi product promotion by celebrity endorsement is not restricted and neither violates the COTPA Act.

The main component in the plaintiff’s product, “Vimal Elaichi”, is “Kesar (Saffron),” and the saffron influenced the color and packaging concept of the product. Surrogate advertising cannot be defined as using the brand name ‘Vimal’ as this Elaichi product does not contain any restricted or banned substances. “Vimal Elaichi” the plaintiff’s product, is a crucial streamlined, entirely self-contained product. 

The plaintiff also accused the defendant of not taking any action against certain businesses offering music CDs, soda, and mineral water, therefore supporting the brands of alcoholic beverages. 

The defendants also served notice on film actor Sh. Ajay Devgan by the defendant through email on March 3, 2018, accusing him of attracting youngsters and dragging them into tobacco habits. The ad campaign violates Section 5 of the COTPA Act. 

The plaintiff is the registered owner of the trademark ‘Vimal,’ and the registration will be of no use if they cannot promote lawful items. Further, “Vimal Elaichi” has a total turnover of more than ten crore rupees, which demonstrates that the product in question is not a surrogate. 

The defendant’s response:

The defendant alleged the plaintiff promoted all types of direct and indirect tobacco under the “Vimal Elaichi” advertisement. They claimed that the plaintiff had also intentionally concealed the details of other products of the Vimal brand that the brand name ‘Vimal’ is registered in class 34, which is for chewing tobacco, zarda, gutkha, and kheni. After the COTPA Act came in force, the product “Vimal Elaichi” was launched to carry out the surrogate advertisement for ‘Vimal Gutkha’ and other tobacco products. 

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The plaintiff’s product in question is not alleged to be containing any tobacco or other banned substance. The product has a high sales figure, and prima facie is an independent streamlined product. The brand names “Vimal Elaichi” and “Bolo Zubaan Kesari” are registered under Class 31, not Class 34. As the sale of gutka is banned throughout the country, there is no reason or occasion for the plaintiff to advertise its tobacco products through “indirect advertisement,” which proves that the plaintiff has a prima facie case in their favor.

According to law, as the balance of convenience is in the plaintiff’s favor, the Court permitted them to continue operating their elaichi business. In any situation, if the plaintiff’s advertising for the product in question is halted throughout this lawsuit, it will result in irreversible income and goodwill losses to them. Although the plaintiff may be reimbursed in monetary terms, the plaintiff’s loss of goodwill cannot be quantified or compensated. It is a common notion that if any manufacturer’s product has been absent from the market for an extended period, it is unlikely that the product will return.

The impugned notice dated 01.03.2018 issued under Section 5 of the COTPA Act has been stayed until the litigation outcome. 

The Court permitted the plaintiff to carry out the advertisement campaign regarding the product in question till the final disposal of the suit.

Read the order here

Authored by: Vartika Vaishnavi; student of Kirit P Mehta School of Law

Disclaimer: This article is intended to provide general guidance to the subject matter. It does not contain legal advice. For any specific advice/corrections, write to [email protected]


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