The commercialization of Internet affects all aspects modern life. Now-a-days video bloggers and social media influencers give online marketing another dimension and hold enough influence to make a substantial impact in making or breaking of a brand name and its value. Such massive societal influence inevitably necessitates that the judiciary is on its toes.
A recent example is Marico Limited v. Abhijeet Bhansali COMIP No. 596 of 2019. In this case, the Hon’ble Bombay High Court dealt with the issue of disparagement of PARACHUTE COCONUT OIL by Abhijeet Bhansali, a/k/a Bearded Chokra, a popular video blogger/social media influencer who produces and uploads videos featuring reviews of products of various manufacturers on his YouTube channel.
The Defendant uploaded a video (“Impugned Video”) containing allegedly disparaging remarks about the Plaintiff’s PARACHUTE COCONUT OIL. The Impugned Video featured, inter alia, a comparison drawn between the Plaintiff’s PARACHUTE COCONUT OIL and another product, labelled as “Organic Coconut Oil” by the Defendant. This another product was, in fact, virgin coconut oil, which is classified, under the Food Regulations 2017, in a different category as compared to regular coconut oil. In the Impugned Video, the Defendant conducted a test comparing the two products without clearly informing the viewers that the rival products, in fact, were classified in different categories. The Defendant went on to give a verdict in his video concluding that PARACHUTE COCONUT OIL is not the right choice for a consumer.
The Plaintiff sought an injunction restraining the Defendant from publishing or broadcasting or communicating to the public, the Impugned Video; disparaging or denigrating the Plaintiff’s PARACHUTE COCONUT OIL product and infringing the Plaintiff’s registered trademark, namely, PARACHUTE.
The Defendant contended, inter alia, that the Impugned Video was intended to educate viewers and express his bona fide opinion. The Plaintiff argued that the Impugned Video was intended to malign the Plaintiff’s PARACHUTE COCONUT OIL. Further, the Plaintiff submitted that the Defendant, purposely and knowingly, misrepresented to the viewers that he was comparing the Plaintiff’s PARACHUTE COCONUT OIL with organic coconut oil when he was actually comparing it with virgin coconut oil. The Plaintiff submitted data that supported the contention that there was no major variance in the nutrition value of the rival products.
Observing that a social media influencer who has or claims to have a sound knowledge on a particular subject matter has the power to influence people, the Hon’ble Court held that this power ought to be exercised carefully. The Defendant being aware of his influence as a social media influencer with a follower base and a degree of credibility could not deliver statements with the same impunity as an ordinary person.
Placing reliance on a Division Bench decision in Gujarat Co-operative v. Hindustan Unilever the court held that intent; manner; and the message sought to be conveyed were the three parameters of determining whether a case of disparagement or denigration can be made out against the Defendant. The Court ruled that the Impugned Video was not an educative video in respect of coconut oils, but a video targeted at the Plaintiff’s PARACHUTE COCONUT OIL. The manner in which the Impugned Video portrayed the Plaintiff’s product and the message sought to be conveyed were held to be denigrating in nature. Thus, it was held that the Impugned Video was hit by all three of the above-noted factors.
After a detailed discussion and analysis on the law of disparagement in view of the factual matrix of the case and the significant role played by social medial influencers and video bloggers in the world of marketing and advertising, the court ordered the Defendant to take down the Impugned Video, pending hearing and final disposal of the suit.