Comparative Advertising: Delhi HC (Reckitt Benckiser v. Hindustan Lever Limited)

Hindustan Lever Limited(HUL) aired a television commercial which depicted a child being sick because of the alleged use of Dettol as an antiseptic liquid in bathing water whilst promoting the superiority of Hindustan Lever Limited’s Lifebuoy Soap. The plaintiff, Reckitt Benckiser filed a suit for an ad interim injunction against the telecast of the television commercial of defendant Hindustan Lever Limited’s Lifebuoy Soap, which was disparaging and denigrating the reputation and goodwill of the plaintiff’s product Dettol in the commercial market.

The plaintiff’s primary grievance was with regard to the content of the advertisement that allegedly depicted the following: The plaintiff’s product was completely ineffective in warding off germs and emphasised that lifebuoy gives 100% germ protection. The TVC showed liquid of the same colour being poured from a bottle similar in shape to a Dettol bottle, producing a milky effect. Moreover, the language used by the father of the sick child in the advertisement emphasised on “nahane ke paani mein ‘do dhakkan’ antiseptic liquid” – a clear indication towards Dettol. These features were claimed by the plaintiff as exclusive features of the product. The disclaimer added was rather vague and blurred.

The defendants refuted the claims by submitting that shape and colour of the bottle shown in the impugned advertisement were different from that of the plaintiff’s product. Furthermore, plaintiffs can’t claim exclusivity over the milky effect, as a huge number of products are capable of effecting the same. The advertisement also carried the disclaimer that “Graphic visualization does not represent any branded antiseptic liquid in the market. Characteristic of generic antiseptic liquid.”

The plaintiff filed the case on three principle grounds: (i) the advertisement was against the public interest, (ii) generic disparagement of all the antiseptic liquids of which the plaintiff has 85% market share, finally (iii) disparagement of the plaintiff’s Dettol antiseptic liquid. The plaintiff also drew attention to a South African court order directing HUL to withdraw the same advertisement aired on South African television.

The Judge after analysing a number of leading cases[1] on the law of disparagement summarized them into the following principles:

a) A tradesman is entitled to declare his goods to be the best in the world, even though the declaration is untrue.

b) He can state that his goods are better than his competitors.

c) He can even compare the advantages of the two goods. He, however, cannot, while saying that his goods are better than his competitor’s, say that his competitor’s goods are bad. If he says so, he really slanders the goods of his competitors and their goods, which is not permissible in law.

e) If there is no defamation to the goods or the manufacture of such goods no action lies, but if there is such defamation, an action lies for recovery of damages for defamation, then the court is also competent to grant an order of injunction restraining them to perform such acts.

Further, in order to satisfy the test of comparative disparagement, the plaintiff has to establish the following key elements:

a) A false or misleading statement of fact has been made about his product;

b) That the statement is deceiving or has the potential to deceive, the substantial segment of prospective consumer and;

c) The deception is likely to influence consumer’s purchasing decisions. The court has to also bear in mind while deciding whether the displayed commercial is disparaging or not, the intent of the advertisement, its manner and the effect of the telecast of such a television commercial. The manner in which the same is telecasted is of prime importance, the same should not be in the manner to ridicule or condemn the product of the competitor, resulting in disparagement or disrupting them in the market.

The Court held that the advertisement can be viewed in two parts: One part is where as the advertisement begins, it showing display of a few toys with the sick child which is a similar aspect to that of the plaintiff‟s advertisement. The other part is the “two dhakkans” of liquid is shown as being harmful and ineffective, which as per the visualisation of the television commercial, does lay an adverse connotation and a lady pouring a brown liquid in the bucket, in the same manner and display as that of the plaintiff‟s television commercial and where the defendant’s product is shown as having the qualities of providing a 100 % germ protection. There can be no grievance in respect where the qualities of the defendant’s soap are sought to be demonstrated: whether those qualities exist or not is not an issue. That part, even if untrue, would be mere puffery. However, the part of the advertisement, where the antiseptic liquid has been slighted and shown in bad light and in fact, as something which is ineffective, can be construed as disparagement and denigration of the antiseptic liquid shown in the advertisement. It is one thing to say that a person’s product is the best or that his product is better than somebody else’s product, but, it is entirely a different matter to say that his product is good whereas another’s product is bad and harmful.

If it were a case of mere promotion of superiority of the defendant’s product, alone, the plaintiff would not have had a case as that would have only betokened a permissible “better” or “best” statement. The advertisement comprises of two parts; one which denigrates and disparages the product of the plaintiff and the other which promotes the purported superiority of defendant’s Lifebuoy soap. There is thus a hint of some malice involved in the commercial in respect of the defendant’s product – indeed, it would be appropriate to delete certain relevant attributes of the defendant’s advertisement which clearly hits on the plaintiff’s product and portrays the same in bad light.