Infringement of Trademark through vlogs in Youtube – Right of Youtuber versus Manufacturer
In a recent episode of disparagement of Dabur’s REAL brands by youtuber Dhruv Rathee, freedom of speech and expression and right of manufacturer was dealt by Calcutta High Court.
Dabur India Limited is the registered proprietor of the trademark ‘REAL’, ‘REAL FRUIT POWER’, ‘FRUIT POWER’, ‘REAL ACTIVE’ word mark, logos and labels in class 32 for fruit juices and ready to serve beverages. They have been continuously using the trademarks for their products.
Dhruv Rathee, an Youtuber having a YouTube channel had uploaded a video on the packaged fruit products available in the India market highlighting effect on health due to consumption of these products. In that video, youtuber generically disparage all packaged drinking fruit juices and contended that consumption of packaged fruit juices leads to type 2 diabetes, hair loss and considered harmful overall and recommended negatively for children’s consumption.
However, in doing so, youtuber prominently referred to the word ‘Real’ which is registered trademark of the petitioner and also used packaging and advertisement references of the petitioner’s products. In that disputed video, Dhruv Rathee had blurred the registered mark/logo but because of use of the trademark REAL and clips of advertisement it made Dabur’s products easily identifiable by the viewers.
Dabur contended that this video makes unfair comparison made between the fresh fruit juices and RTS fruits beverages, makes a clear, direct and brazen reference to the products sold under the brand name “Real”, deliberately and mischievously partially blurred the registered mark/logo “Real Fruit Power” and directly targeted the Dabur’s product thereby tarnishing its reputation, has also used slides in the impugned video from the Dabur’s promotional advertising videos which are easily relatable by the consumers at large to the product Real.
In dealing with this issue, Justice Ravi K Kapur struck a balance between right of the petitioner as manufacturer and reality of dissemination of information through any medium and consumer protection. Referring to Freedom of Speech and expression under Article 19(1)(a) of the Constitution and Section 29(9) of the Trade Marks Act, 1999 and relevant provisions of the Copyright Act, 1957, Justice observed that though the underlying intention may not be objectionable but by making repeated direct and brazen references to the product Real of the petitioner-Dabur, the Rubicon has been crossed, accordingly the balance of convenience and irreparable injury is in favour of Dabur, and imposed restrictions on the disputed video. The said video is permitted to air, circulate or upload the impugned video only after removing the offending portions in the impugned video which makes any reference to the petitioner’s product Real and also not to make any use of the trademark, copyright content, trade dress, packaging label and logo of the petitioner’s Real brand of products.
Case- Dabur India Limited v. Dhruv Rathee and ors. [CS/41/2023]