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]

Source:   Calcutta High Court, Trademark Lawyer, Youtube, IP&INDIA, CGPDTM, Dhruv Rathee, DABUR