Rin’s latest advertisement, placing itself to be a better bet than Tide is anything but squeaky clean (pun intended). Having done so, the ugly head of commercial disparagement has been reared again. P & G, the brand owner of Tide has a valid claim bolstered by the string of case laws such as Colgate Palmolive India Ltd. v. Anchor Health & Beauty Care Pvt. Ltd. that have discussed its elements ad nauseam.
The requirements for commercial disparagement are a reference to Claimant’s product, the said assertion being false, the presence of malice and Claimant suffering special damages as a result of the advertisement. Rin manages to land itself in dirty water (puns galore!) by successfully conforming to almost every requirement formulated to constitute Commercial Disparagement.
The concerned advertisement positions a mother as having a son smug with the prospect of having whiter uniforms owing to Rin’s proficiency in contrast with another family using Tide. The first child even manages to steal Tide’s catchphrase to make the mother look silly. All in all, HUL has ended up making a real mess (pun possibility?). In other words, an explicit reference as mandated in a slew of cases globally such as De Beers Abrasive Products Ltd. v. International General Electric Co. of New York has been made.
The veracity of whether Rin is truly a better product in cleaning clothes owing to production superiority is a question beyond the scope of the debate. No trader lacks the ability to state his product to be finest in the market and stronger, finer or better than its competitors. It is outside the law however, for a trader to declare his product to be the best if at the same time he asserts his competitor’s product to be of inferior quality. Credit for the same goes to the matter of Reckitt Colman of India ltd vs. MP Ramachandran and Anr. Rather than poking fun at a competitor as Pepsi and Coke did in their famous ad wars, Rin went all the way to bash any brand image Tide might have enjoyed. Therefore, while scientific veracity of the claim cannot be judged at the outset, the ad itself is negative to its competitor and hence, implicates HUL.
The law of Commercial Disparagement is sourced from Tort Law where malice too plays a key role. In other words, a trader must have the wilful intention to cause injury to the business reputation of the competitor. Even in the eventuality that a trader did not intend to do so; blame can still be attributed to him on the ground that he negligently failed to foresee that his statement would have disparaged the claimant’s product [American Co. v. France]. Tide would still be able to argue this element effectively as it can be alleged that even if an obvious presence of malice is absent, it can be inferred from the very nature of the impugned advertisement.
A question one must ask oneself is with respect to the final element of damage caused as a result of the disparaging advertisement. A pioneering piece on the Tort of Commercial Disparagement, The Law of Commercial Disparagement: Business Defamation’s Impotent Ally argues that a large number of economic choices a consumer makes in a day are affected by flow of information from other sources- an ad being a valid source of information.
I wonder however, in a media blitz such as the one our world resides in, is any publicity of this sort- where a product itself has not been alleged to be harmful to a user per se and has simply been deemed less superior, opinion shaping? In other words, would such an ad cause a consumer to actually think that Tide is not a good product and cause its users to change loyalties? Surely a discerning viewer and consumer would not have looked at the Sprite ad that poked fun at Mountain Dew and decide against consuming the latter! In fact, by resorting to such a form of advertisement, Rin has unnecessarily included Tide in their screen time. Creating the current brouhaha has only given Tide free publicity funded by Rin.
Any good publicity agent would tell you that a good ad must create an impression on the minds of the viewer. Companies should stick to the aim of making sure that their brand identity is firmly imprinted on viewer consciousness. However, ads such as the one made by Rin are counter-productive to the company if such controversies are going to give Tide free publicity anyway. The advantage if any is offset by the unnecessary publicity highlighted.
With the hefty prospect of impending litigation and free publicity to the owner of the disparaged brand, it is time that brands employ a cost-benefit analysis to such disparaging advertisements.
Image from here.
A comment by Ms. Uma Murti, a senior lawyer from Cochin.
Many thanks for providing me this brilliant article by a young law student. I liked his paedantic approach to the subject of commericial disparagement. However, there is more to this campaign than that meets the eye. Here are a few posers for us to dwell on…
Are HUL and P & G are trying to corner the existing market by creating a mock brand war and are they laughing all the way to the bank?
Is there collusion between these two MNC’s to marginalize other less known competing brands and eat into their market share?
Are such mock brand wars part of a gimmick to attract undue publicity to these two brands and crystallize the misleading impression that only these brands exist?
Is litigation the appropriate response to such collusive ambush marketing techniques? (Knowing both these MNC’s too well for their ambush marketing themes and schemes and for the fact that many P & G employees work with HULand vice versa.)
Was P & G already aware of the HUL campaign while it was being made and knowingly acquiesed to it? Did key personnel of these companies meet in the making of their respective campaigns and conspire to do such a campaign?
Did both HUL and P & G ultimately gain a market share after this campaign?
Is the suit instituted by P & G against HUL a collusive suit?
Has not the filing of the suit brought more free publicity to both brands?
Is P & G collusively allowing HUL to continue the campaign despite the grant of temporary injunction by a competent court?
I have not doubt whatsoever that the answer to all the above questions are in the affirmative. In my opinion this is a fit case for investigation by the Competition Commission of India against both companies. The marketing campaign of Rin and Tide is classic case of unfair trade practice and a misinformation campaign intended to defeat the legitimate market share of other brands and marginalize them. If the CCI has the judicial conscience and will to investigate this campaign throroughly this truth can be brought to light. Pending such an investigation by the CCI both companies must be banned from advertising their products pending the disposal of such an investigation. If these brands are found to have colluded then both brands must be banned from the Indian market.
A well written piece in the given time as I am told. A promising writer for sure! Good conclusion too. I also agree with Ms.Uma Murti (the learned advocate from Cochin) that the CCI should investigate into the matter. It surely seems an apt case of collusion or unfair trade practice.
Also, I have some doubts:- Just like films are approved by the Censor Board under the Cinematograph Act, 1952, is there any such law/provision for advertisements as well? If so, then how come these advertisements get approval? If not, then my question is simple – why not?!
If we have a Board which approves of the advertisements before it is aired on television or made public, will it not save some time, money, litigation, prevent unfair practises, etc etc?!
I would also like to point that the present laws relating to street advertisements/Billboards are also seriously devoid of regulation in almost all states of the country.
Is there any rationale for not having such regulations?! If yes, could anyone please explain why?!
Eager to know!
Thank you.