Influencers’ Video Criticizing Product Based On Lab Results Prime Facie Not Defamatory Against Brand: Delhi High Court

The Delhi High Court has refused to grant a temporary injunction in favour of San Nutrition Private Limited in its plea against alleged defamation, disparagement and trademark infringement by four social media influencers who made videos featuring San Nutrition’s ‘Doctor’s Choice’ products.

San Nutrition Private Limited (plaintiff) sought action against content creators Arpit Mangal, Kabir Grover, Manish Keshwani and Avijit Roy (defendants no. 1 to 4) over YouTube videos reviewing its Doctor’s Choice products.

San Nutrition submitted is engaged in the sale and marketing of dietary and nutritional supplements supplement products. It sells its products under the marks DC Doctor’s Choice, DC Doctor’s Choice Iso Pro and other formative marks.

It is San Nutrition’s case that defendants/influencers disparaged its products through their YouTube videos. The YouTube videos reviewed the Doctor’s Choice Iso Pro product and claimed that, as per lab reports, the Iso Pro products contain far less protein content and much higher carbohydrate content than claimed. One YouTube short described San Nutrition’s product are the worst protein powder brand. Another video called the product ‘ghatiya’.

The defendants/influencers argued that their case falls within the right to exercise freedom of speech and expression under Article 19(1)(a) of the Constitution. Specifically, Arpit Manga; (defendant no. 1) argued that he undertook extensive due diligence before making any statement and had only asserted a precautionary opinion in the public interest based on scientific evidence i.e. the laboratory reports. Further, he contended that his videos engaged in constructive criticism and that his comments are covered within the ambit of fair comment made on a subject matter involving public interest.

Justice Amit Bansal noted that San Nutrition nowhere questioned the genuineness of the findings in the laboratory reports relied by the defendants/influencers. The Court noted that San Nutrition only questioned the credibility of the laboratories, stating that they were not FSSAI registered.

The Court said that the veracity of the results of the laboratory reports can only be tested at the stage of trial. It noted that they cannot be disregarded at an interim stage merely because they are not FSSAI recognized.

“Therefore, at a prima facie stage, the laboratory reports relied upon by the defendant no.1 cannot be disregarded only on account of the fact that the laboratories in question were not recognized by FSSAI to test the plaintiff’s product. The veracity of the results of the laboratory reports can only be tested at the stage of trial. At an interim stage, the Court is only required to take a prima facie view if the defendant no.1 has been able to establish his defence of truth of the assertions made by him with regard to the results of the aforesaid laboratory reports.”

Defamation

The Court was of the view that the defendants/influencers were entitled to the defence of ‘fair comment’ at a prima facie stage.

On Arpit Mangal’s YouTube video titled ‘Doctors Choice Iso Pro detailed review by All About Nutrition || Lab Report ||’, the Court noted that Mangal made the video only to educate the consumers and based on an honest opinion formed by the lab results.

It observed “The essence of his videos is only to educate the consumers, who could also be diabetic patients, students or athletes, that the protein content in the plaintiff’s product is much less than what is claimed and the carbohydrate is in excess of the claim made and to advise them to carefully examine and consider all factors before selecting any brand of protein powder for purchase. He encourages the consumers to conduct their own test before making a choice. The comments made by the defendant no.1, in my prima facie view, forms an honest opinion of the defendant no.1 based on ‘sufficient factual basis’, i.e., the aforesaid test reports from accredited laboratories.”

It also noted that the use of the work ‘ghatiya’ to describe San Nutrition’s product was not disparaging or defamatory per se, as the word means ‘sub-standard” in English.

It further noted that the reference of San Nutrition’s trademark Doctor’s Choice as ‘Doctor Has No Choice’ was prima facie satirical in nature and a mala fide intention cannot be attributed.

The Court thus was of the view that the influencers prima facie established a bona fide defence of fair comment.

Trademark infringement

The Court noted that Section 29(4) of the Trade Marks Act uses the expression ‘uses in course of trade’. Here, it noted that the influencers did not use San Nutrition’s marks, including hashtags in the impugned videos, ‘in the course of trade’. It noted that they used San Nutrition’s trademark only to review its goods and not as their goods or services.

The Court stated that granting a temporary injunction would be prejudicial to the defendants/influencers as it would curtail their freedom of speech and also the right of public to receive information on health matters.

“The balance of convenience would also be in favour of the defendants and granting an interim injunction would be to their prejudice as it would result in putting fetters on their right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution and would also deprive the right of the public at large to receive information on matters of health.”

The Court thus was of the view that a prima facie case of trademark infringement was not made out.

With these observations, the Court dismissed San Nutrition’s plea of ad-interim junction.

Case title: San Nutrition Private Limited vs. Arpit Mangal & Ors

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