In comparative advertising, it is not permitted to make statement that one’s good is inferior or undesirable over goods of other: Delhi HC

Read Judgment: RECKITT BENCKISER INDIA PVT LTD vs. HINDUSTAN UNILEVER LTD

Pankaj Bajpai

New Delhi, November 18 ,2021: The Delhi High Court has stated that while it may no longer be open to a trader to make an untrue declaration that his product was better than that of his competitor, he could certainly compare advantages of his goods over goods of his competitor. What is prohibited is for a trader to say that his competitor’s goods are bad, added the Court.

The Single Judge Jayant Nath observed that in comparative advertising, comparing of one’s goods with that of other and establishing superiority of one’s goods over other was permissible but one could not make a statement that a good was bad, inferior or undesirable as that would lead to denigrating or defaming goods of other.  

Going by the background of the case, RECKITT BENCKISER (Plaintiff) filed an application under Order 39 Rules 1 & 2 of CPC, 1908, seeking injunction to restrain HINDUSTAN UNILEVER (Defendant) from publishing, broadcasting or putting in public domain five advertisements. The ads allegedly aimed to vilify, denigrate and defame Plaintiff’s product i.e., HARPIC toilet cleaner. 

The Defendant had launched the five ads over the weekend that completely trashed Plaintiff’s HARPIC brand, declaring it to be ineffective and useless for purposes it was used for. The advertisement campaign was designed to ride upon goodwill and reputation of HARPIC branded toilet cleaner of Plaintiff, a product which represented 77.2% value market share for toilet cleaners and inviting consumers to substitute the same with Defendant’s DOMEX, a product which had a mere 5.3% market share.

After considering the arguments and evidences, the High Court quoted the decision of Coordinate Bench in case of Colgate Palmolive (India) Ltd. v. Hindustan Unilever Ltd, to reiterate that defamation of competitor’s goods was not permissible, as it could give rise to action for recovery of damages, and in such circumstances, order restraining such defamation could be passed. 

No off-the-cuff claim could be made by a trader that his goods were the best in the world and the advertisement must be viewed in its entirety, added the Court. 

The High court went on to note that the relevant question to be asked was what was the storyline of impugned TVC, intent of advertiser and message that it left with consumers/prospective consumers. 

It was one thing to say that defendant’s product was better than that of plaintiff and another to say that plaintiff’s product was inferior to that of defendant’s, added the Court. 

Justice Nath observed that advertisement must not be false, misleading, unfair or deceptive, and if advertisement extended beyond the grey areas and became false, misleading, unfair or deceptive, it would not be entitled to benefit of any protection. 

The High Court upon the perusal of 1st TVC as a whole found that it essentially sought to claim that to remove bad odour, DOMEX was a better solution, but it did not prima facie denigrate, disparage or malign Plaintiff’s product.

At the same time, comparison of bottles depicted in impugned print advertisement, being second, fourth and fifth advertisements, prima facie showed that the same was deceptively similar to mark duly registered by Plaintiff, added the Court. 

The Single Judge thus said that it was manifest that the three advertisements sought to depict a mark, deceptively similar to Plaintiff’s mark and further sought to announce that the cleaner contained in the depicted bottle was an ordinary toilet cleaner and apparently unable to remove stains/malodour in a toilet. 

The Single Judge observed that onus to prove that Defendant’s toilet cleaner was technically superior to that of Plaintiff was on Defendant, and at current stage, without evidence having being led, it was not possible to conclude that Defendant’s product was superior to that of Plaintiff, as claimed by Defendant. 

Since averments made in the second, third, fourth and fifth ads, prima facie, at current stage, appeared to disparage Plaintiff’s product, the High Court concluded that defendant, while promoting its product, could not be permitted to denigrate or disparage product of a rival.