Dabur v. Dhruv Rathee: A Closure or Gateway for the Future?
SpicyIP
Dabur v. Dhruv Rathee: A Closure or Gateway for the Future?
By Aarav Gupta
In an interesting turn of events, Dhruv Rathee, a YouTuber and Dabur have decided to settle their ongoing legal dispute in an ‘amicable’ manner. The dispute centred around Dabur’s claims against Rathee’s video, which referenced their ‘REAL’ juice product Dabur India Limited. Dabur alleged that these depictions were disparaging their trademarks, infringing their copyright, could mislead viewers and negatively impact their brand. The Calcutta High Court on March 15, 2023, passed an interim injunction holding that, even though the video might not seem problematic, it crosses the line by repeatedly mentioning and criticizing the petitioner’s product-“Real Fruit Juice”. (Read the analysis of this order in our previous post by Srujan here.) Subsequently, during two hearings in February 2024, Rathee proposed a solution: he would blur or replace the packaging images in question with generic fruit juice packaging, without waiving his rights to freedom of speech and expression and the ability to make fair comments (see Livelaw reports on this here and here). Eventually, the parties agreed to settle the dispute and consequently, the Calcutta High Court, through its order dated June 18, 2024, disposed of the case and all related applications. Though this might have been a win-win outcome for both parties, this post seeks to address an important question, which is also the heart of this dispute- Does the use of trademarked/ copyrighted packaging in a critical or informative context constitute an infringement, or is it protected under the doctrines of fair use and freedom of expression?
Understanding the Nuances
On Dabur’s allegations of copyright infringement, it is pertinent to note that Section 52(1)(a) of the Copyright Act clarifies that using copyrighted material for research, criticism, review, or reporting current events is not considered infringement. Dhruv Rathee’s video, which has sparked considerable controversy, might arguably fit into this category as a research-based review and critique of the health claims made by packaged fruit juice companies. Given this perspective, shouldn’t Rathee be fully within his rights to keep his original video unchanged? (Interested readers can also refer to Srujan’s post for more on this.)
With regard to the trademark issues, a possible argument from Dabur’s end could be that the visual resemblance of Dabur’s ‘REAL’ juice packaging and use of “Real” trademark in Rathee’s video, even if unintended to mislead, could potentially confuse consumers and dilute the brand’s identity. The Court referred to Section 29(9) of the Trademarks Act, which deals with infringement through spoken use or visual representation of a mark. Based on this, they determined that the unauthorized use of the packaging, label, and logo of Dabur’s “Real” product in the impugned video violated trademark protections. However, the Court overlooked the applicability of Section 30(1) of the Trademarks Act in this case. This section states that honest use of a mark, without taking unfair advantage or disparaging it, does not constitute infringement.
On a broader note, this case challenges us to rethink the balance between protecting intellectual property and upholding the right to free speech and access to information. In an earlier hearing, as reported by the Bar and Bench, the Calcutta High Court made it clear that it wasn’t happy with Dabur India’s push to remove all the URLs of a video by YouTuber Dhruv Rathee about Real fruit juice. During the hearing, Justice Ravi Krishan Kapur told Dabur that for the Court to pass such an order, Dabur should prove that Rathee had bad intentions on his part. This shows that the Court isn’t necessarily siding with big companies and is mindful of protecting freedom of speech. The Court’s stance suggests a fair approach, ensuring that individuals are not silenced without proper cause. “I can not allow a multinational company to pursue a case like this against an individual,” the bench categorically said.
This case also brings to mind a similar controversy between a YouTuber and Cadbury’s Bournvita. A Youtuber (Revant Himatsingka aka Foodpharmer) dropped a video calling out the sugar content in Bournvita. This eventually led to the National Commission for Protection of Child Rights (NCPCR) sending a show-cause notice to Cadbury. Videos like these play a rather important role in educating us about the food we eat, by breaking down the ingredients and giving us a clearer picture of what we’re consuming, helping us make better choices. When content creators call out potentially harmful ingredients, it can push companies to improve their standards, irrespective of their history online or allegations of being partial. This did happen in the case of Bournvita where they ended up reducing the sugar quantity by almost 14.4%. Perhaps concerned about a similar backlash, Dabur responded to Rathee’s proposal with a suggestion to avoid statements linking ‘Packaged Juice’ with type II diabetes (see here). However, Rathee did not agree to Dabur’s recommendation to refrain from making any comments against all other packaged fruit juices.
From a constitutional law perspective, there’s a delicate balance between protecting IP and ensuring free speech. The right to free speech is fundamental—it’s what allows us to openly discuss and share information. This right becomes even more crucial when it’s about public health and safety. People have a right to know what’s in their food and to hear different perspectives on it. Transparency and open dialogue are vital for both consumer trust and corporate accountability. It’s a dynamic dance between innovation and the public’s right to know, ensuring that we can trust the information we receive and that companies can grow without unwarranted criticism. As explained by Sangita, albeit in the context of informational advertisement and comparative advertisement, Article 19(1)(a) covers the right to information, which ensures that consumers have the right to know and receive information (Colgate v. Anchor (para 64)). This right to freedom of speech and expression includes the right to be educated and informed (Ministry of Information v. Cricket Association of Bengal (para 78)). Similar logic can be applied in the case of these informative videos too. It’s a rather great example of the tightrope walk between shielding consumers from misinformation and keeping the freedom to critique commercial products alive and well.
Way Forward
These incidents raise pertinent questions about the regulatory frameworks governing advertisements. How do regulatory bodies, especially the ones concerning advertisements, ensure that the dissemination of information about a product by a company is accurate and not misleading.
Think about it: we should be able to freely talk about the products we use without worrying about getting into legal trouble. This is especially important when it comes to food. When information about what we’re eating gets twisted or hidden, it can have serious consequences for our health and trust in the brands we rely on.
Especially in the context of IP laws, we need laws that find a sweet spot between protecting brand names/ identities and allowing for genuine, non-infringing criticism. Such clear interpretation is the need of the hour to ensure that trademark or copyright litigations are not misused as strategic lawsuits against public participation. This balance is crucial in today’s world, where media influence is huge and can swing both ways. By making these laws clearer/ interpreting them in a better manner, we can create a space where free speech and consumer protection work together. This way, we can make informed choices and hold companies accountable, all while knowing we won’t be muzzled for speaking out.