In the last week of September, the High Court of Calcutta issued a judgment on the issue of comparative advertising in the dispute between Reckitt Benkiser (India) Ltd. v. Hindustan Unilever Ltd. This is the third matter between the two parties on the issue of comparative advertising. Our posts on the earlier two matters can be found here and here. The dispute was with respect to four advertisements published by both parties concerned.
The first advertisement portrays Dettol Kitchen Gel killing 100X more germs than the leading dishwash of the day. The second advertisement is similar to the first advertisement, with the significant difference that instead of leading dishwash, ‘VIM’ is clearly shown. The third advertisement shows Lifebuoy Soap (product of HUL) as having 100% germ removal capacity while Dettol Antiseptic Liquid was shown to have close to none. The fourth advertisement shows an antiseptic liquid as unsafe for children while stating that VIM was safe owing to its natural ingredients.
The issue was whether the comparative advertisement resulted in trademark infringement and whether it was protected as commercial speech under Article 19(1)(a).
On the first issue, the Court held that S.30, Trademarks Act permitted comparative advertisements to the extent that they were the puffing up of the trader’s own product. However, a serious comparative advertisement that lowered the reputation of the other goods would be hit by S.30 as it would be unfair or detrimental to the rival trader’s trademark. The test was whether a reasonable person would understand the comparative advertisement to be making a serious claim disparaging the rival trader’s product.
On the second issue, the Court held that comparative advertisements do fall under the head of commercial speech which is protected by Art.19(1)(a). However, there are restrictions on this commercial speech. It has been held previously that commercial speech which is “deceptive, unfair, misleading and untruthful” would be hit by Art. 19(2). The Calcutta High Court held that any serious comparison of a product with a rival trader’s product would invariably lead to denigration of the latter. This would be at the very least, unfair. Therefore, the Court held that serious comparative advertisements would not be protected under Art. 19(1)(a).
In the instant case, with respect to the first advertisement, the Court held that any reasonable person would have understood the term ‘leading dishwash’ to be referring to VIM as it holds 2/3 share of the dishwash market. The Court held that this was a serious comparative advertisement that denigrated a rival trader’s market. The Court stated that if the advertisement had merely shown Dettol to have 100X germ killing capacity, this would have been a mere puffing up of one’s own product and thereby permissible. However, stating that Dettol kills 100% germs while the leading dishwash (VIM) has no germ killing capacity denigrates VIM. Moreover, showing that VIM has no germ killing capacity while hiding the fact that VIM has germ removal capacity indicates that the advertisement was biased and devoid of honest intention. Therefore, the Court held that this advertisement was unfair as it lowered the reputation of VIM and consequenty, was hit by S.30, Trademarks Act.
The Court issued an injunction against the second advertisement as well for the same reasons. This was a stronger case as the advertisement directly compared Dettol and VIM.
The third advertisement, the Court held made an unfair comparison between two products that were not meant for the same purpose. Dettol is an antiseptic that is supposed to be used as a supplement to soap/ bathing gel while Lifebuoy is used predominantly for cleansing. Therefore, the Court held that disparaging Dettol after showing it in an improper context and dilution was unfair and hit by S.30. Therefore, an injunction was issued against the third advertisement as well.
The fourth advertisement, did not directly refer to Dettol. Instead it showed a bottle with an amber coloured liquid which was termed as an antiseptic. This, the Court said would be understood by reasonable persons to refer to Dettol. Moreover, the Court held that the advertisement’s reference to the dangerous nature of antiseptics when consumed had a real possibility of deterring consumers from purchasing the Dettol Kitchen Gel. The Court ruled that this was a serious comparative advertisement that declared one product to be safer and consequently, more superior than the other. This resulted in denigration of that product which lowered the reputation of the product. The advertisement was therefore held to be detrimental and violative of S.30.
Therefore, the Court issued injunctions against all four advertisements as they were all serious comparative advertisements that went beyond the permissible limit of puffing up their own products.
(All our posts on the issue of comparative advertising can be accessed here)