In the case of Reckitt Benckiser India Pvt. Ltd. v. Hindustan Unilever, IA No. 8999/2021 in CS(Comm) 340/2021, the High Court of Delhi discussed the importance in striking balance between the traders rights of the advertisers and the interests of the customers.
Reckitt Benckiser India Pvt. Ltd. (hereinafter referred to as the Plaintiff) is a United Kingdom based company involved in the manufacturing of nutrition, health and hygiene products. The Plaintiff has been manufacturing and selling the well-known toilet cleaner ‘Harpic’ in India since 2001.
On the other hand, Hindustan Unilever Limited (hereinafter referred to as the Defendant) is India’s largest fast moving consumer goods (FMCG) company, and ‘Domex’, a toilet cleaner, is one of the well-known products of the Defendant.
The Plaintiff recently filed a law suit seeking a temporary injunction against the Defendant from telecasting, broadcasting, publishing or putting forth in public domain, five advertisements with respect to the Defendant’s product ‘Domex’, that allegedly disparaged the goodwill and reputation of the Plaintiff’s brand and their products under the trademark ‘Harpic’.
ISSUE BEFORE THE HIGH COURT
Whether the advertisements (television commercials, print and social media) by the Defendant, degenerate or disparage the product ‘Harpic’ of the Plaintiff?
CONTENTIONS OF THE PARTIES
The Plaintiff contended that the Defendant has launched five advertisements, all of which vilify, degenerate and defame the Plaintiff’s well known toilet cleaner ‘Harpic’, as they state it to be ineffective and useless. The description all the five advertisements of the Defendant are discussed hereunder:
1. The first advertisement, a television commercial i.e., TVC, begins with a woman picking up a bottle of Harpic in a store when her son enquires about the brands ability to kill toilet stink. Subsequent to this, another woman explains that Domex employs fresh guard technology to eliminate toilet stink, which the other brand, i.e., the Plaintiff’s brand is incapable to achieve. Thus, the TVC portrays that the Plaintiff’s product is inefficient, and proms the consumers to shift their preferences from Harpic to Domex, i.e., the Defendant’s product.
2. The second, fourth and fifth advertisements which was uploaded in the form of YouTube videos or in social media platforms showcase a bottle that can be clearly identified as the Plaintiff’s product Harpic, and imply that the same is an ordinary toilet cleaner. In the backdrop of the same, the Plaintiff contended that the shape of the bottle has been registered by the Plaintiff, therefore, the Defendant has infringed the Plaintiffs registered trademark.
3. The third advertisement which is in print, explicitly draws a comparison between Harpic and Domex, and portrays the latter as the preferred choice for fighting bad odour for a longer period of time.
The Defendant contended that their product Domex has a unique patented technology which is better at fighting bad odour. The claim of the Defendant was backed by TUV STD South Asia Pvt. Ltd., a known independent laboratory.
With respect to the first advertisement, the Defendant argued that the commercial only portrayed the benefits and special features of the Defendant’s product, and does not disparage or degenerate the Plaintiff’s product.
With respect to the second, fourth and fifth advertisements, the Defendant asserted that the advertisement showed the generic shape of a toilet cleaner bottle and did not make any specific reference about the Plaintiff’s product Harpic.
Regarding the third advertisement, the Defendant contended that the advertisement merely informed the public that Defendant’s product fights bad smell for a longer period of time, and did not state anything negative about the Plaintiff’s brand or product Harpic.
DECISION AND FINDINGS
The Hon’ble Delhi High Court (hereinafter referred to as the High Court), relied upon the landmark judgment of the Supreme Court in the case of Colgate Palmolive India Ltd. v. Hindustan Unilever Ltd. (2013 (SCC)Online Del 3186) wherein it was held that a trader is certainly allowed to compare his goods or products with that of the competition brand; however, what is prohibited is for the trader to say that the competitors’ products are good or bad.
The High Court made a reference to Dabur India Ltd. v. M/S Colortek Meghalaya Pvt. Ltd. (2010 (42) PTC 88 (Del.) wherein the Court had explained the factors required to be considered while deciding upon the issue of disparagement as under:
1. Advertisement Intent- This may be deduced from the plot and the message intended for the ordinary customer. An ordinary individual cannot be regarded to be gullible or capable of ignoring puffery. On the other hand, the consumer is more likely to believe commercials’ factual portrayal; i.e., if they are portrayed as serious expressions of truth rather than exaggeration, such commercials will be taken seriously.
2. Advertisement’s Overall Effect- The overall impact of a TVC can be determined on the primary ground that whether it promotes the advertiser’s goods or denigrate or degrade a competitor’s product? The advertiser may make a negative contrast while advertising, but it should not have an overall effect on the consumers.
3. Advertising Style- Honest disparagement and healthy competition is acceptable; however, false disparagement and wilful defamation of the competitor’s product is not accepted.
In light of the aforementioned, the High Court made the following observations:
Television Commercial (First Advertisement)
The High Court observed that the said TVC claimed that the Defendant’s product Domex is a superior remedy for removing foul odours, but it particularly did not degrade, discredit, or defame the Plaintiff’s product Harpic and that there is no prima facie case against the Defendant.
Advertisement in Print (Third Advertisement)
The High Court issued an interim injunction in relation to the third advertising stating that the said commercial depicts the Defendant’s goods as superior to that of the Plaintiff’s and the same amounted to disparagement.
Videos on Social Media/YouTube (Second, fourth and fifth Advertisements)
The High Court observed that the bottle shown in the commercial appears to be deceptively similar to the Plaintiff’s registered shape of the bottle. The contention of the Defendant that their product has a unique patented technology is a disputed question of fact which needs to be proven, and the onus lied on the Defendant to prove the same at a later stage.
The High Court also observed that the toilet cleaner portrayed in the advertisement is an ordinary toilet cleaner which is unable to remove stains and malodour in the toilet. In the backdrop of the same, the High Court held that such depiction of the bottle which looks the same as the Plaintiff’s product amounts to degenerating and disparaging the Plaintiff’s product Harpic.
In light of the above, the High Court in this instance imposed a temporary restraining order barring the Defendant from releasing the four impugned advertisements in any medium until all references to Harpic and the deceptively identical bottle are removed.
The High Court also refused to issue an injunction in relation to the TVC because the TVC’s intent and overall impact were not to degrade, disparage, or malign the Plaintiff’s product, Harpic, but rather to establish that the Defendant’s product Domex is a better odour-eradication solution.
As a result, while the High Court imposed injunctions against print and social media commercials, it also maintained the Defendant’s right to promote their product by refusing to issue an injunction against the TVC.
While the free flow of commercial information is essential, and an advertisement is a form of commercial speech under Article 19(1)(a) of the Constitution of India, a manufacturer cannot discredit or degenerate his competitor’s trade mark or trade name by launching an advertisement that is inaccurate, misleading, unfair, or deceptive; i.e., make a declaration that the product is terrible, inferior, or unfit for human consumption.
Despite this, prominent brands have frequently attempted to degenerate each other’s goods by launching or broadcasting comparative advertisements in order to establish their ‘supremacy’ in the market, which serves no practical purpose because comparative advertisements frequently end up in courtrooms and are removed/withdrawn prematurely.
One aspect that stands out in such cases is the need of safeguarding consumer interests. In the case of Colgate Palmolive India v. Anchor Health and Beauty Care Pvt. Ltd. (2009 (40) PTC 653 (Mad.), the Madras High Court held that “allowing two rival traders to engage in puffery without denigrating one other’s product would benefit both of them, but would leave the consumer helpless.” It is pertinent to note that a customer stands to benefit from the information which is revealed as a part of such competitive commercials.
On a concluding note, it is vital to strike a balance between the interests of the company or brand whose product is being advertised and the interests of the customers, so that the latter can profit from the marketing and make an informed decision, as has been held in various situations.
-Team AMLEGALS assisted by Ms. Kirtika Tripathi (Intern)
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