raw maricaw

1. Marico Limited vs
Abhijeet Bhansali
Incase u need reference
https://dastawezz.com/2021/05/21/marico-v-abhijeet-bhansali-
influencers-and-brand-protection-in-the-age-in-social-media/ slide 1,
2 , 7-12
https://legaldesire.com/marico-limited-vs-abhijeet-bhansali/ slide 3-
6 AND comments
https://rmlnlulawreview.com/2020/02/11/social-media-influencers-
and-the-law-observations-after-marico-limited-v-abhijeet-bhansali/
law on disparagement
https://iiprd.wordpress.com/2020/08/29/what-takes-precedence-
right-to-reputation-or-right-to-freedom-of-speech-and-expression/
slide 7

2. introduction
• In the early part of 2020, the Bombay High Court was called upon to adjudicate a matter involving
a social media influencer. The Bombay High Court’s judgement in the case of Marico Limited v.
Abhijeet Bhansali[1] determines the nature of social media influencers’ relationship with
marketers and followers/subscribers had an impact on the court’s decision. In the case above
mention wherein the Learned Single Judge of Hon’ble High Court of Bombay Justice S. J. Kathawalla
restrained by an order of temporary injunction a social media influencer concerning a video in
which he reviews a branded Coconut Oil and compares it with Virgin Coconut Oil. The Learned
Single Judge found the Video to be false and disparaging. The Influencer in question filed an appeal
which reversed the findings of the Learned Single Judge subject to certain modification in the
video.

3. Brief Facts
• Plaintiff, one of the biggest FMCG companies in India and one of Plaintiff’s products,
Parachute edible coconut oil, was claimed to be amongst the most reputed brands owned
by Plaintiff. Defendant, a YouTuber had his channel titled ‘Bearded Chokra’. On or about
1st September 2018, Defendant published a video titled ‘Is Parachute Coconut Oil 100%
Pure?’. In this video, Defendant reviewed Plaintiff’s product. In the mentioned video the
defendant is forceful, decisive and assertive with his words and statements against
PARACHUTE branded coconut oil. He explains that it is one of the most sold and
consumed coconut oils in India and that he was going to “break down all the tiny details”
about the product and “bring the truth” to the viewers. Plaintiff filed the present suit
claiming that Defendant made false claims and statements about Plaintiff’s product.

4. facts
• 1. Marico Limited, the plaintiff was one of the leading players in the Fast Moving Consumer Goods (FMCG) market
in India that manufactures and markets inter alia packaged edible oil, edible coconut oil, oats, hair oil, beauty
products and other personal care product(s) under its portfolio of various well-known and prestigious brands.
• 2. The plaintiff’s most well-known trademarks are PARACHUTE under which it markets inter alia its edible coconut.
The plaintiff had undertaken the extensive promotion of its edible coconut oil sold under the brand PARACHUTE in
various media.
• 3. The defendant was a “YouTuber” / “V-Blogger” who had his channel titled “Bearded Chokra” on the popular
website “Youtube”.
• 4. On his channel, the defendant who claims to have a Postgraduate degree in Bio-Technology from the Mumbai
University produces and uploads videos wherein he reviews products of various manufacturers.
• 5. On or about 1st September 2018, the defendant published a video titled “Is Parachute Coconut Oil 100% Pure?”.
In this video, the defendant reviewed the plaintiff’s PARACHUTE coconut oil. According to the plaintiff, in or about
last week of January 2019, it came across the Impugned video published by the defendant.
• 6. It is the plaintiff’s case that in the Impugned Video the defendant makes claims and statements concerning the
plaintiff’s PARACHUTE edible coconut Oil, which are false and unsubstantiated.

5. • 7. The plaintiff stated that on the whole, the Impugned Video was disparaging and denigrating in
nature.
• 8. The plaintiff through its Advocates sent an email dated 28th January 2019 to the defendant
whereby the defendant was called upon to cease and desist from publishing or in any manner
communicating the Impugned Video to the public, and calling upon him to remove the Impugned
Video from social media sites including his YouTube channel.
• 9. On 29th January 2019, the defendant replied to the Plaintiff’s advocates defending his video
and also proposed to re-make / modify and/or delete portions of the Impugned Video subject to
certain conditions stated therein.
• 10. On 30th January 2019, the defendant sent another email to the Plaintiff’s advocates stating
that he is expecting a response from the plaintiff.
• 11. On 30th January 2019, the plaintiff, through its Advocates, replied with a holding email stating
that the contents of the defendant’s emails were being considered by the plaintiff and called upon
the defendant to remove the Impugned Video in the meantime.

6. • 12. The defendant refused to comply with the aforesaid request of the plaintiff stating that he had a
right to voice his opinion.
• 13. On 11th February 2019, the plaintiff filed the present suit and on 13th February 2019, the plaintiff
made an application for urgent ad-interim reliefs.
• 14. The defendant filed his affidavit in reply; the plaintiff filed its affidavit in rejoinder, and the
defendant filed a supplementary affidavit in Reply.
• 15. Since the pleadings in the matter were complete, by consent of both the sides, the court took up
the notice of Motion for final hearing.
• 16. The plaintiff inter alia prayed for an injunction against the defendant, restraining him from
• · Publishing or broadcasting or communicating to the public the Impugned Video,
• · Disparaging or denigrating the plaintiff’s PARACHUTE COCONUT OIL product or any other product of the
plaintiff or the plaintiff’s business and
• · Infringing the registered trademarks of the plaintiff.

7. Trademark Infringement and Product
Disparagement
• For a liability to exist, the defendant must satisfy all the ingredients to constitute disparagement,
slander of goods and malicious falsehood. The constituents of slander of goods/ product
disparagement/ malicious falsehood include:
1. The impugned statements must be false;
2. There must be a clear intent of causing harm;
3. There must be damage caused by such impugned statements.
• The defendant claims that “This video was only to bring awareness to the general public of the
inferior quality of parachute coconut oil.” The defendant also contends that he conducted the tests
required before publishing the video along with providing the court with scholarly articles which
were referred before the publication of the video.

8. Law on Disparagement
• It is settled law that the law of personal defamation is distinct from the law of malicious falsehood
and slander of goods. In Reckit Benckiser (India) Limited v Naga Limited, the Delhi High Court
explained that, in the latter, the plaintiff suffers special damages, as the damage is not restricted to
his reputation but is also to his property and trade. There are three essentials for proving
disparagement as provided in Halsbury’s Laws of England (quoted in Hindustan Unilever Limited v
Gujarat Cooperative Milk Marketing Federation Ltd.): (i) that the defendant’s statements are false;
(ii) that the statements were made maliciously or recklessly; (iii) that the said statements caused
special damages to the plaintiff.

9. • In Marico Limited, the first essential was satisfied prima facie as the influencer had cited dubious
internet material to justify his claims. He also muddled the distinction between virgin organic
coconut oil (oil as removed from wet coconut kernel) and organic coconut oil (oil derived from
copra or dried coconut kernel), which are treated differently under the Food Safety and Standards
Regulations, 2011. Thus, the claims made therein were patently false. As far as the maliciousness
and recklessness of the statements is concerned, the same were exemplified by the manner in
which the influencer presented the claims: he insisted that the same were ‘scientific’ and
‘empirical’ despite a lack of expertise in the matter, the purposeful erasing of the distinction
between the two aforesaid kinds of coconut oil, and the overall vindictive tone of the video and
related text. Lastly, any special damage to Marico was evinced by the comments below the
influencer’s video, which showcased that several viewers had taken the decision to not use
Parachute after having watched the video.

10. Plaintiff’s arguments
• The Impugned video provided incorrect information and deceived the viewer into believing that
the tests conducted substantiated the claim of the defendant that the plaintiff’s product was of
inferior quality and/or is inferior to other oils, subsequently, the impugned video as a whole was
disparaging and denigrating in nature. The video also maliciously published by the defendant
comprises words and visuals in respect of the plaintiffs’ product, which were false, and which have
not only denigrated the plaintiff’s product but also caused and likely to further cause special
damage to the plaintiff. Since the defendant claims that creation and publication of such videos is
his occupation and source of livelihood, the defendant’s review cannot be equated or treated at
par with any other review provided by an ordinary consumer since the intention of an ordinary
consumer is not to generate viewership or hits and consequently earn revenues from the impact
created by the Impugned Video. Hence, the acts of the defendant fall under the category of
‘commercial activities and not a general review of the product by an ordinary consumer. The
defendant also in his video promoted a competing product in substitution for the product of the
plaintiff and urged the viewers to stop using the plaintiffs’ product and attempted to promote two
other competing products by providing links for purchasing these products from online retailers
such as amazon. Consequently, Defendant’s actions satisfy all ingredients to constitute
disparagement, slander of goods, and malicious falsehood.

11. Defendant’s Arguments
• There was no malicious intent from the defendant’s side and the purpose of the video was only
educational in nature. The defendant remarks that the plaintiff has used a trick of showing a wet
coconut alongside its product to fool consumers into thinking that its product was derived from
wet coconut instead of copra. Subsequently, the defendant’s offer to delete certain parts of the
video was made as a concession to settle the dispute and was not an admission. Upon buying
products from clicking on the link mentioned by Defendant, Defendant receives a commission from
the online site not the competitors of Plaintiff. However, Defendant’s recommendations and review
videos in the past have been made without receiving any commission. Plaintiff uses the term
‘coconut oil’ when they are selling copra oil which is of inferior quality. Statements made by
Defendant in the Impugned Video are true and constitute bona fide opinion and is guaranteed by
Article 19(1)(a) of the Indian Constitution. Defendant’s statement that Plaintiff’s oil’ is of an inferior
quality to other organic cold-pressed coconut oils’ is correct and per the scientific literature. Some
of the words of Defendant such as that the smell of Plaintiff’s product is akin to a dried or rotten
coconut’ were used for exaggeration and were not to be taken literally. An action for
disparagement/malicious falsehood/slander of goods can only be against a trader or a competitor.

12. Judgement

13. Observations by single bench
• The Single Bench stated that the defendant being a ‘social media influencer’ bears a higher burden to
ensure there is a degree of truthfulness in his statements and added that a social media influencer
cannot deliver statements with the same impunity available to an ordinary person. The court on the
statements made by the defendant remarks that in the impugned Video, Defendant has made use of
forceful statements and thus has portrayed himself as an expert who has undertaken extensive research.
The literature relied upon by Defendant pertains to gauging the quality of ‘Virgin Coconut Oil’ and thus
inapplicable to the present case. The court on the question of whether the Defendant had any reason to
believe that the statements he made were true since there is material in respect of Plaintiff’s product to
demonstrate that such belief was possible. And thus, Defendant’s statements have been made with
recklessness and without caring whether they were true or false. On the defendant’s fundamental right
to free speech the court observed that Defendant has afforded no explanation for using the term ‘rotten
coconuts. Later in his video, Defendant has once again insinuated that Plaintiff’s product might be made
from poor quality coconuts.
• In an action for disparagement/malicious falsehood/slander of goods, it is irrelevant whether the
Defendant is a trader or not so long as the necessary ingredients are satisfied. Fundamental rights
cannot be abused by any individual by maligning or disparaging the product of others.

14. Observations in the Appeal by the
Division Bench
• The Appeal by Abhijeet Bhansali was allowed with some minor modifications to the video.
However, the dominant message conveyed by the video was not restricted.
• On Freedom of Speech the Division Bench stated the statements of facts or statements of opinions
or defamation, where a person asserted a matter of fact, it cannot be restrained from expressing
himself. In cases of opinions or subjective issues, different considerations apply. Whether a
statement is a fact or opinion depends upon whether the consumer can verify the statement. If
yes, the same cannot be treated as an opinion. If an opinion is based on disclosed non-defamatory
facts, action against it is not maintainable, irrespective of how unreasonable or derogatory the
opinion is. However, if an opinion is based on undisclosed or implied facts, the support of an
action depends on the understanding of the statement. If the recipient reasonably believes the
truth of an undisclosed or implied defamatory fact about the subject of the statement, the speaker
is liable for making a defamatory statement. Admittedly, Respondent’s product is not extracted
from fresh coconut oil and it uses an expeller pressed process. This results in a yellowish tint and a
strong odour. Thus, Respondent accepts statements of facts made by Appellant that the suggested
claim of Respondent that its oil is extracted from fresh coconut, is false.

15. • The Division Bench also opined on the errors made in the decision of the single bench. Learned
Single Bench has wrongly held that the Appellant has compared Respondent’s product with an
unknown product which was a virgin coconut oil. The Single Bench has overlooked the fact that
even the Respondent had claimed its oil to be virgin coconut oil. The only error committed by the
Appellant is to refer to the exemplar oil as organic coconut oil because the reference is to virgin
coconut oil, but this is a trivial error and does not mislead the viewer who would clearly
understand that the essentiality of the presentation is that Respondent’s product is not extracted
from fresh coconuts and that the expeller pressed process is used to extract the oil from Copra.

16. Comments
Social media is the perfect platform to misuse the fundamental right to speech and expression
guaranteed to every citizen of this country. While one uses this right as a defence to derogatory
statements made, they often forget that right to dignity is also a fundamental right which is at stake
because of the reckless statements and baseless accusations they make. Social media in general
these days has given people the opportunity to say whatever they want without having the fear of
being punished. There are so many websites making numerous statements starting from a water
bottle’s material to theory of mars having water content irrespective of checking the authenticity.
With intriguing thumbnails to such videos, people attract more and more likes which help them in
making easy money. While doing this, people often forget or probably choose to ignore that they
might cause harm to someone. With the concept of “influencers” on rise, everybody with a phone
has an opinion which he/she thinks would be an ultimatum if shared. In the present case, the person
posted a video about the quality of a product. Not just him, anyone and everyone has a right to do
so. But only after making sure that their accusations if any are backed by strong theories and
evidence. In the present case, he not only used wrong tests but was himself confused between two
completely different products. The biggest problem with the video is him adding his qualifications
which is one of the best ways to make the viewers believe in the statements and accusations made.

17. • The judgement was in favour of the defendants and it rightly struck down the irrelevant and highly
irresponsible statements made by the defendants. I, however, feel this was not it. The defendant
should have been asked to pay compensation to teach a lesson to people who intentionally or
unintentionally spread false statements and fake theories. However, the plaintiff had not asked for
compensation but asked for the video to be taken down. This was ordered by the court and justice
was given in favour of the plaintiff. The only addition the court could have made was to make him
record another video stating that the theory he had put forth was not true. The defendant in his
contentions had raised this point saying that the plaintiff may make a counter video justifying their
facts. This should have been the defendant’s task to do as he was solely responsible for the chaos
created and there is every possibility that viewers believed in his theory and made videos
professing the same. The court could have ordered for the judgement to be widely publicised.