The on-going dispute in the Tide/P&G vs Rin/HUL comparative advertising matter reminded me of a recent order of the Delhi High Court lying in my inbox for a few weeks, dealing with a comp ad dispute in the domain of kitchen cleaners – between Mr Muscle Kitchen Cleaner and CIF Cream. (You can download the case from the DHC website here: case title: SC Johnson & Son, Inc vs Buchanan Group Pty Ltd)Sai has already discussed the Good Knight vs Odomos judgement delivered in February this year. That is a more comprehensive decision, certainly, but I highlight this case because Justice Rajiv Shakdher here, while granting a temporary injunction in favour of Mr Muscle, (I’ll keep my pun-frequency low, I promise) made some relevant observations about intention to compare by innuendo and the effect of an advertisement on sales.
A brief run-through the facts:
Mr Muscle alleged that CIF’s advertisement was derogatory of its own product: the CIF ad shows, among other things, an orange-coloured container with a unique indentation and nozzle/trigger (similar to Mr Muscle’s container), and presents that an advanced product like CIF can remove tough kitchen stains better than any others. This ad ran on television from August 2009 to October 2009, after which the ad was unilaterally withdrawn. However, it continued to live a life of its own online (no luck with my searches so far, though).
CIF et al (I know, you ask, can a kitchen cleaner be a man?, but do humour my Latin, for I learnt only Sanskrit) raised various defences including the 3-month delay on the part of Mr Muscle in coming to court. That contention was anyway shot down, since CIF failed to assure the court that they would not run the ad again.
CIF also ran the court through a frame-by-frame description of the ad, and pointed out several issues for the defence, including that CIF is compared with a blue coloured container in the final frame, implying that the comparison with “other” kitchen surface cleaners is generic, and can’t be deemed to attack Mr Muscle; and the statement that the cleaning efficacy of CIF due to micro particles in the product was a statement of fact backed by laboratory tests.
The court’s observations, while allowing the temporary injunction, were as follows:
A. Attempt to compare by innuendo:
In the ad, CIF is shown to be more efficacious than other kitchen cleaners, which are shown in containers of various colours, including an orange one with the nozzle in the form of a trigger. However, there were several other orange-coloured containers available in the market similar to the one shown, and neither the colour nor the trigger-nozzle could be said to be unique to Mr Muscle.
“But these differences by themselves, prima facie, cannot come to the rescue of the defendants as there is by innuendo a reference to plaintiffs product amongst others. The advertisement .. runs for …perhaps not more than 30 seconds. The time frame available to a consumer to appreciate the difference is so minimal that the fine distinctions pointed out in court can have no meaning. …The defendants’ insistence on having [an orange coloured container with a nozzle in the form of a trigger] included in the impugned advertisement, prima facie lends credence to the plaintiffs’ assertion that there is an attempt to compare.”
On whether such an attempt to compare amounted to denigration, the court noted that the ad showed CIF could clean “tough kitchen stains” (I repeat, do not look for puns) with least effort as compared with competing products. In showing thus, it did denigrate Mr Muscle, according to the court, since “it comes within the test of [CIF] alluding to a “specific defect” or “demerit” in [Mr Muscle]t.”
My comments – I feel there was room for the court to have been clearer in its observations here. It clearly agrees with CIF and establishes that the ad compared their product with multiple other products, including one available in an orange-coloured container, and one in a blue-coloured container. If multiple containers, then how can Mr Muscle alone claim disparagement? By extension, does this open up the floor for manufacturers of kitchen cleaners sold in blue-coloured containers to protest as well?
B. Is claim of superiority based on lab test results a statement of fact?
Not surprisingly, Mr Muscle questioned the credentials of the laboratories and the veracity of the test results. The court believed that whether such claims were statements of fact required trial, and could not be decided upon at the present stage.
C. Effect of advertisement on sales:
Sales figures had been bandied about by the parties to justify claim for damages, but the court noted that the impact of the ad on sales could be measured only post-August 2009. Even then, the impact of an ad would not be “necessarily felt in close proximity.”
It said that the impact of an ad on sales “is neither known immediately nor is it directly proportional. Like with every product there are some negative factors which drag the sales while there are others which give it a fillip. Depending on which factor has greater impact the sales may increase or decrease. Therefore, increase in absolute terms does not give the entire picture.”
While agreeing that the advertisement had “the necessary portends of impacting [Mr Muscle’s] revenue”, the court relegated that decision to the trial that will follow.
With that flourish, CIF was (temporarily) cleaned out by Mr Muscle. (Serious stuff, no puns, remember.) Meanwhile, how will the Rin vs Tide story play out, I wonder.
Image from here.
