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Recently, in a case of comparative advertising, the Delhi High Court denied granting an interim injunction against Hindustan Unilever Ltd (HUL) (here). Colgate Palmolive (India) Ltd. brought an action against HUL for its ads relating to its product ‘Pepsodent GermiCheck Superior Power’ as these ads allegedly disparaged Colgate’s toothpaste ‘Colgate Dental Cream Strong Teeth’.
Colgate made the following submissions:
First, it was contended that the claim made by HUL that Pepsodent GermiCheck had ‘130% attack power’ was blatantly false. This false statement violated several provisions of the Advertising Councils Code as well as The Drugs and Cosmetics Act, as it amounted to ‘misbranding’.
Second, the print and TV commercial portrayed Colgate’s product in bad light and falsely depicted that the use of Colgate could cause cavities. The advertisements were analyzed frame by frame and the following observations were made:
The TV commercial depicts that Triclosan an ingredient in Pepsodent stays in the mouth four hours after brushing and qualifies a ‘preventive cavity test’. But Colgate contended that no such test exists in the world. Also, while the Pepsodent Boy passed this test, the Colgate Boy was shown to have failed. In another frame, the Colgate Boy was shown brushing his teeth in an improper manner, whose teeth had gaps (indicating cavities) and whose mother seemed very unhappy. All this implied, as per the plaintiff, that Colgate’s toothpaste could cause cavities and was therefore disparaging of their product.
The Print Ad: It was argued that the words ‘Pepsodent now better than Colgate Strong Teeth’ were meant to convey that Colgate Strong Teeth was no longer a good product. Also, the word ‘Attaaaack’ used in the ad was an attack on Colgate and not on the cavity causing germs.
Thirdly, HUL’s past record showed that it had a history of making false claims in respect of its products. Cases such as: Hindustan Unilever Ltd v Colgate Pamolive Ltd, 1998 SC 526 and Reckitt Benckiser (India) Ltd. v. Hindustan Unilever Ltd. 200 (2013) DLT 563 (Dettol v. Lifebuoy case) were cited.
Colgate apprehended a loss of market share if the HUL was not restrained from circulating these ads.
HUL asked the court not to adopt a hyper technical view and not to analyse an advertisement like a statute or a clause of an agreement. Taken as a whole, neither the TV commercial nor the print advertisement denigrates the product or the brand of Colgate.
On the claim that Pepsodent GSP was a better product, it was argued that there was no denigration of Colgate Strong Teeth. In this regard, the decision in Dabur Colortek was cited to show that courts have allowed comparative advertising and have allowed manufacturers to claim superiority over their competitor’s products, so long as there is no denigration of the other product. The results of the in vivo and in vitro tests supported the statements of HUL (that Pepsodent GSP actually had a 130% germ attack power) were also relied on.
The court first examined the law concerning comparative advertisements. The first principles developed in Dabur Colortek were “for a Plaintiff to succeed in an action based on malicious falsehood, the necessary ingredients are that (i) a false statement was made which is calculated to cause financial damage (ii) that it was made maliciously with an intention to cause injury and (iii) the impugned statement has resulted in a special damage. The law in England was referred to as laying down that: (i) a trader is entitled to say that his goods were the best; in doing so he could compare his goods with another (ii) say that his goods are better than that of the rival trader in this or that respect (iii) whether the statement made was disparaging of his rival’s product depended on whether it would be taken ‘seriously’ by a ‘reasonable man’; an alternative test would be whether the trader had in fact highlighted any specific defect in his rival’s goods and (iv) a statement made by a trader puffing his own goods was not actionable.”
Thereafter Division Bench in the Dabur Colortek case, emphasized the importance of keeping in mind the medium of the advertisement and its story line and further developed the law on comparative advertising: “A plaintiff (such as the Appellant before us) ought not to be hypersensitive as brought out in Dabur India v. Wipro Limited 2006 (32) PTC 677 (Del).”… “Finally, we may mention that Reckitt and Colman of India Ltd. v. M.P. Ramchandran and Anr. 1999 (19) PTC 741 was referred to for the following propositions relating to comparative advertising: (a) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue. (b) He can also say that his goods are better than his competitors’, even though such statement is untrue. C S (OS) No. 1588 of 2013 Page 12 of 22 (c) For the purpose of saying that his goods are the best in the world or his goods are better than his competitors’ he can even compare the advantages of his goods over the goods of others. (d) He however, cannot, while saying that his goods are better than his competitors’, say that his competitors’ goods are bad. If he says so, he really slanders the goods of his competitors. In other words, he defames his competitors and their goods, which is not permissible. (e) If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the Court is also competent to grant an order of injunction restraining repetition of such defamation.”
Applying these principles to the present case, the Court came to a prima facie conclusion that the ads were not disparaging.
TV and Print ads: According to the court too much could not be read into the ads and to expressions of each individual character. Also, the court noticed that the teeth of the Colgate Boy had not been zoomed into and no gaps or cavities could be seen. The expressions and effects used in the ad, only showed that Pepsodent was a better product but did not disparage Colgate’s product. In this regard, the court observed “If there is a comparison of products and an attempt to show that one is better than the other, then obviously both boys cannot have happy faces.”Also, the court held that the word ‘attack’ in the print ad was related to Pepsodent’s germ fighting capability and was not an attack on Colgate.
The court denied going into the questions of truthfulness of the ‘130% germ attack’ capability of Pepsodent GSP and the allegation of HUL being in the habit of making misleading claims, at the stage of interim injunction.