Comparative Advertising: Reckitt Benckiser trumps Hindustan Lever Ltd again

The Delhi High Court in yet another order granted Reckitt Benckiser an interim injunction against Hindustan Lever Ltd (HUL). This is the second order granted in favour of Reckitt Benckiser against HUL recently (read the first one here).
The dispute may be traced back to Reckitt Benckiser’s (plaintiff’s)TV commercial and print campaign which compared the germ killing capabilities of its product Dettol Healthy Kitchen and HUL’s (defendant) Vim Liquid. These advertisements supposedly contained truthful statements about the germ killing capabilities of the two competing products. The defendant proceeded filed a suit against the plaintiff for disparaging advertisement before the Calcutta High Court. However, the Court passed a consent order in this matter allowing the plaintiff to continue with the impugned television advertisement subject to small variations.
The present dispute arose out of the following facts: The plaintiff alleged that in retaliation to the previous Calcutta HC order, the defendant came out with an advertisement published in the Sunday Times Edition in which the defendant disparaged the plaintiff and its brand Dettol. It contended that in the advertisement, the defendant maliciously equated its product to a “Harsh Antiseptic”. The question asked in the initial portion of the advertisement was:
“A Harsh Antiseptic or the power of 100 lemons – which one would you choose to clean your child’s tiffin?”
The plaintiff contended that the above question directly indicated the brand Dettol, and also misrepresented to consumers that plaintiff’s Dettol antiseptic liquid and Dettol Healthy Kitchen have the same ingredients. Furthermore, the advertisement went on to ask:
“An Antiseptic is for cleaning wounds and floors. Would you use to clean the utensils your family eats from?”
The plaintiff again contended that this particular question renders the target brand to be that of Dettol’s Antiseptic Liquid, which is used for cleaning wounds and floors. The advertisement thereafter mentioned with a disclaimer in fine print:
The defendant submitted that the campaign did not make any reference to the plaintiff’s products and only sought to inform the consumers that harsh antiseptics were not fit for cleaning utensils. It contended that the plaintiffs had themselves admitted that the antiseptics did not fall in the ‘harsh ‘category, and thus construing it as a reference to their brand was baseless and frivolous . Moreover, the plaintiff did not file any conclusive evidence to show that the overwhelming majority of consumers associate the term “harsh antiseptic” in reference to the plaintiff’s products. Further, HUL submitted that it was entitled to puff its products; and that the plaintiff was being hypersensitive to such puffery. It was also claimed that the campaign was purely intended to promote superiority of their product over other competitors, which was within their fundamental right of free speech and expression. The advertisement was also in line with the principles as postulated by Advertising Standards Council of India (ASCI). Thus, the defendants denied disparagement of the plaintiff’s product.

Whether the advertisements were disparaging –

Justice M L Mehta decided that prima facie the advertisement targeted the plaintiff’s brand Dettol and its product Dettol Healthy Kitchen. The Court relied on Dabur India Ltd v. Colortek Meghalaya Pvt. Ltd& ors; De Beers Abrasive; and Pepsi Co. Inc. &Ors vs. Hindustan Coca cola Ltd. & Anr, and reiterated the four pronged test for disparagement laid down in them:
(i) An advertisement is commercial speech and is protected by Article 19(1) (a) of the Constitution
(ii) An advertisement must not be false, misleading, unfair or deceptive.
(iii) There grey areas need not necessarily be taken as serious representation of facts but only as glorifying one’s product.
(iv) While glorifying its product, an advertiser may not denigrate or disparage a rival product.
The Division Bench in the Dabur-Colortek case had held that while hyped-up advertising may be permissible, it cannot transgress the grey areas of permissible assertion, and if it does so, it must have some reasonable factual basis for the assertion made and that it is not permissible for anybody to make an off-the-cuff or unsubstantiated claim that his goods are the best in the world or that his goods are better than that of a rival. Based on these principles, in the instant case the Court held that the defendant’s claims did not fall with the purview of permissive comparative advertising.
The Court also stated that it is common knowledge that the plaintiff’s brand Dettol is synonymous with the term antiseptic in the FMCG market in India. In support it mentioned an older Delhi HC decision[1] wherein it was observed that the public carried an impression in their minds that all Dettol products are antiseptic. Further, it was held that the usage of the term ‘harsh antiseptic’ actually referred to an antiseptic (and not a particular brand) which is harsh, wherein the term ‘harsh’ is used as an adjective. Thus, the ad made a direct link between the antiseptic and Kitchen liquid, and connoted a similar strong effect of both liquids. Media reports in print and on social media also suggested that consumers drew the above-mentioned inferences.
Thus, the Court passed an interim order restraining the defendant to the extent indicated above from publishing the impugned advertisement or any other similar advertisement or depiction aimed at disparaging the goodwill and reputation of the plaintiff’ s brand.
[1] Reckitt Benckiser (India) Ltd. v. Hindustan Unilever Ltd., 2008 (38) PTC 139 (Del.)

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