[This post is co-authored by Samridhi Chugh and Manya Gupta. Samridhi is a final-year student at the Campus Law Centre, Faculty of Law, University of Delhi, and a graduate in Journalism from Lady Shri Ram College for Women. Her previous posts can be accessed here. Manya is a fourth-year student at the National Law University, Delhi. Note for the readers: The matter is listed for today before the Delhi High Court.]

The Delhi HC seems to be on a spree, granting interim injunctions in cases concerning trademark disparagement (see here and here), with posts by social media influencers and content creators now also under the  radar of such actions. Mondelez, the company behind “Bournvita” and “Tang” is the latest recipient of this protection against posts by social media influencer Revant Himatsingka, who goes by the username “FoodPharmer”. Mondelez had alleged that FoodPharmer was disparaging its trademark in more than 150 posts on their social media accounts, seeking an ex-parte ad-interim injunction for their removal. On October 15, 2024, the Single Judge Bench of Justice Amit Bansal granted the sought interim injunction restraining FoodPharmer from “issuing/uploading/telecasting any videos/publication/posts in any language or any medium disparaging any of the products/brands of the plaintiffs.” Later, on October 23, the Court, in a clarificatory observation, said that the above injunction was not to be interpreted as a gag order on the influencer; meaning thereby that the influencer could still make factual assertions regarding the plaintiff’s products but could not disparage them. 

Frequently in the past, SpicyIP bloggers (for instance, Swaraj and Praharsh) have attempted to flag the number of challenges posed by the unwitting grant of interim injunctions, especially those that are passed ex-parte. The Supreme Court in Ramrameshwari Devi v. Nirmala Devi (2011) also laid down guidelines for the grant of ex-parte interim injunctions, noting their potential of wreaking havoc in getting them vacated. In this post, we further our inquiry by examining the issues posed by the interim injunction in the present case. We also delve into the aforesaid clarification issued by the DHC, which, contrary to expectations, appears to have made the question of disparagement even more difficult to delineate.

Unreasoned Ex-Parte Injunctions: Sailing through Troubled Waters?

The impugned content, originating in 2023, adhered to a consistent format commonly employed by the influencer in his other exposés on similar nutrition-specific issues. These posts and reels typically began with a detailed breakdown of the product ingredients, accompanied by critical commentary, alleging that the plaintiff brands misled consumers with claims of being healthy. As reported here and here, the influencer’s central argument specifically targeted Bournvita’s market positioning as a health drink and Tang’s representation as a fruit-flavoured beverage mix fortified with vitamins and minerals. Among other sharp criticisms, some of the later-removed posts accused Bournvita of using caramel colouring alleged to be carcinogenic and primarily condemned the products’ high sugar content. They further questioned the deceptive marketing of these products, particularly given their focus on children as the primary consumer base.

On October 15, the Court, referring to “various other orders passed by co-ordinate benches… injuncting the defendant from posting defamatory videos concerning other brands” (para 29), restrained the influencer from further issuance of any disparaged content against the plaintiffs, with the decision on the takedown of existing posts deferred for the next date.

The Court observed that the plaintiff had fulfilled all requirements of the three-step test for the grant of an interim injunction under Order XXXIX, Rule 3 of the CPC — the making out a “prima facie case” and the balance of convenience in their favour, with the foreseeable potential of irreparable harm to their reputation if the defendant was permitted to carry on posting the disparaging posts and videos (Para 31). A perusal of the order makes it clear that the Court did not pay a close heed to the facts specific to the present case and attempted to impose a one-size-fits-all approach in establishing the prima facie case in favour of the plaintiffs. The entire ‘rationale’ underlying the impugned order seems to have been captured in the above single paragraph, without any analysis of the content of the impugned posts vis-à-vis the harm being caused, or any prima facie examination of infringement. 

The injunction seems tendentious considering its ex-parte nature, contrasting the observations of this Court in Dabur India v. Emami Ltd. (2023) in which it emphasised on granting defendants the time to reply. While the Dabur order was later updated with a qualification, the requirement of granting time still stands unless “certain public and commercial interests are harmed.” What, however, might comprise these interests is a mystery, as discussed here. In the meantime, the requirement to grant time was further reaffirmed in Silvermaple Healthcare Services v. Dr. Ajay Dubey (2023) in which the DHC besides granting the defendants the time to file reply also devoted 15 pages to its reasoning on why the injunction test was not made out.

Further, it is worth noting that the grant of an ex-parte injunction goes against the judicial logic of measuring the balance of convenience after considering the legitimate claims of both the sides. This has also been affirmed by this Court in Shenzen Oneplus Technology Co Ltd v. Micromax Informatics Limited (2014) as, “…A delicate balance has to be struck between the right of the plaintiff and the right of the defendant…Only if a Court were to find that so grave and so irreparable is the injury that even a day’s delay cannot be brooked, and so strong is the prima facie case made out, only then would a Court be justified in granting an ad-interim injunction.” 

The lack of a thorough reasoning is especially problematic in the present case owing to its interesting history. The impugned video essentially led to Mondelez slashing the sugar content of Bournvita by 14.4%. It also led to the influencer earning the tag of the man who forced India to read nutritional labels. Further, post these developments, the Ministry of Commerce and Industry directed e-commerce firms to remove all drinks and beverages, including Bournvita, from the ‘health drinks’ category from their platforms and portals. The Ministry also clarified that there a “health drink” was not defined under the Food Safety and Standards Act, 2006, and, thus, reiterated  an earlier stance of the FSSAI that the categorisation of such was misleading. Considering the larger health implications of the questioned labelling, as well as the subsequent events which added weight to the influencer’s arguments, the need for a deeper inquiry into the veracity of the claims by the Court should not have been overlooked. For Mondelez to later pray for the virtual erasure of the post that it had earlier impliedly accepted as true, indubitably deserved some degree of scrutiny by the Court.

The Uncertain Formula for Trademark Disparagement

The development, ironically, became further convoluted owing to the aforesaid clarification offered by the Court on October 23, that the said injunction was not to be interpreted as a “gag order” against the defendant-influencer. This, inferentially, permitted him to offer non-disparaging factual assertions against the plaintiffs. Coming as a response to a request for a clarification by the defendant’s counsel on the effective practical contours of the order, the complete import of this observation remains unclear. At first glance, this clarification appears to reconcile the need to protect the plaintiff’s trademark with the defendant’s right to free expression. On deeper inquiry, however, it raises questions about the criteria used to differentiate between permissible factual assertions and impermissible disparagement, which remain undefined. Without clear boundaries, the influencer faces uncertainty about what constitutes a breach of the injunction, potentially leading to over-caution or further litigation.

This is important, given the establishment of a prima facie case being the first requirement, the Court must analyse whether there is disparagement. The fact of the impugned content being false is an essential of trademark disparagement as recognised by the Supreme Court in its judgments in Tata Press Limited v. Mahanagar Telephone-Nigam Limited (1995), Colgate Palmolive (India) Ltd v. Hindustan Lever Ltd (1999), among others. The Delhi High Court itself, in the case of Dabur India Ltd. v. M/S Colortek Meghalaya Pvt. Ltd. (2010), relied on the above precedents to affirm falsity of speech as a prerequisite for the establishment of claims of disparagement. It went so far to say that even hyped up or “off the cuff” commercial speech may be impermissible if it were to be made without the weight of some reasonable factual substance.

The clarification, too, implicitly reiterates that non-disparaging factual statements are not prohibited. However, it leaves unanswered the question of establishing such falsity of the statements in the first place, thus complicating real-time implications as well as the consequent enforcement of the arising injunctions. This makes one wonder about two issues. Firstly, the burden of proof for the establishment of disparagement is primarily on the plaintiff, and not the defendant. Is it possible that the clarification mandating the defendant-influencer from expressing anything supposedly “non-factual” can be interpreted as shifting the evidentiary onus? Secondly, the subsequent test to affirm disparagement being that of “actual malice” further requires a thorough inquiry into whether the defendant acted with “a reckless disregard for truth,” as highlighted by Prashant Reddy. However, establishing truth amid conflicting scientific evidence, expert opinions or anecdotal consumer experiences submitted from both sides sparks a potentially endless debate over credibility and evidentiary value.

To the contrary, the injunction restraining the defendant from “disparaging” the plaintiff becomes troublesome given the absence of factual evidence behind Mondelez’s own claims of being a health drink and its failure to counter the question of high sugar content. The DHC in Dabur v. Advertising Standards Council of India (2023) emphasised the need for a higher standard of scrutiny for claims of health benefits made in relation to food products, which could pose challenges for Bournvita in future. Reading this with the threshold of factuality for the claims of disparagement places an onerous burden on the defendant to self-censor while also leaving room for potential misuse of the injunction by the plaintiff to stifle criticism. The picture, so far, remains unclear in the context of the impact it may have on content creators from a freedom of speech lens. The near absence of a speaking order in granting the original injunction, coupled with a ‘clarification’ that appears to confound more than clarify on the contours of permissible and impermissible actions, has made matters difficult for the defendant-influencer. This is evident from the fact that in a hearing on November 15, despite the absence of any adversarial order by the Court, the counsels for the influencer volunteered to request podcaster Ranveer Allahbadia to take down any disparaging references to Mondelez’s products from his podcast with him, as available on YouTube. It would be interesting to see how the DHC navigates the way forward as the matter awaits its next scheduled hearing on November 27.