In the present case of ITC Limited v. Reckitt Benckiser (India) Pvt. Ltd., O.A.Nos.554 to 556 of 2021 and A.No.3475 of 2021 in C.S.No.55 of 2021, the High Court of Madras discusses the concept of comparative advertising and disparagement and how the same amounts to trademark infringement.
ITC Limited (the “Plaintiff”), is the manufacturer of the floor cleaner under the brand name “NIMYLE Herbal”. Reckitt Benckiser (India) Private Limited (the “Defendant”), had introduced an advertisement from 9th September, 2021 onwards, for their product “LIZOL”, a chemical disinfectant surface cleaner.
In the above-mentioned advertisement, the Plaintiff’s bottle “NIMYLE” was used as a comparison to the Defendant’s product. The Defendant used visual graphics to suggest that the Plaintiff’s product is ineffective and does not offer 99.9% protection against germs or protection against the Covid-19 virus.
In addition to the aforementioned facts, the advertisement depicted that 3/4th of a liter of the Plaintiff’s product is required to guarantee 99.9% protection against germs and also stated that the effectiveness of herbal floor cleaners is very poor.
It was further stated that 3/4th of a 1-liter bottle, i.e., approximately 800ml of NIMYLE must be used to kill 99.9% of the germs. On the contrary, the Defendant’s product “LIZOL”, could be used in small amounts, such as just 2-3 cups in ½ bucket of water to kill 99.9% of germs.
In the light of the aforementioned facts and circumstances, the Plaintiff filed the present suit for infringement of trademark under Section 29 of the Trademarks Act, 1999 (the Act) which deals with the infringement of registered trademarks In India.
ISSUES BEFORE THE COURT
- Whether the Defendant should be allowed to run the impugned advertisement in order to exercise the Right of Freedom of Expression and Trade?
- Whether the impugned advertisement launched by the Defendant is denigrating or disparaging the products of the Plaintiff’s?
- Whether the facts stated in the impugned advertisements are true and if so, can truth be a defence or justification to continue the impugned advertisement?
CONTENTIONS OF THE PARTIES
The Plaintiff contended that expression through advertising, like any other fundamental right, is subject to the reasonable restrictions under Article 19(2) of the Constitution of India. The Plaintiff further contended that Right to Freedom of Expression through advertisements and commercials cannot be an absolute right but should be subject to certain restrictions.
In addition to the above, the Plaintiff referred to the impugned advertisement and submitted that the colour of the liquid in the bottle which is labeled ‘Herbal’ explicitly resembles the Plaintiff’s product.
Moving forward, the advertisement also shows the Plaintiff’s product’s bottle kept in the middle rows in the background, thereby denoting it to be of inferior quality. Plaintiff stated that the Plaintiff’s brand is one of the leading brands in the market of herbal floor cleaners and such defamatory advertisements would end up affecting the goodwill of the company.
It was further contended that the voice over in the commercial stated that the ‘herbal product’ in the bottle, which is deceptively the same as the Plaintiff’s bottle, does not kill 99.9% germs.
The Petitioner asserted that the statements that disparage the Plaintiff’s products are not even true, but misrepresentations and misleading statements.
On the contrary, the Defendant argued that the bottle in the commercial was not the same as the Plaintiff’s product. The Defendant contended that it was a fundamental right to show comparative advertising and that the statements contained in the advertisements were true.
The Defendant placed reliance on Hamdard Dawakhana (Wakf) Lal Kuan v. Union of India, AIR 1960 SC 554, wherein the Hon’ble Supreme Court of India held that fundamental Right of Expression through advertisements and Right to Trade are fundamental rights guaranteed under Article 19(1)(a) and 19(1)(f) of the Constitution of India. However, it was pertinent to note that one of the exceptions to Freedom of Expression is ‘defamation’, which is explicitly mentioned in the Article 19(2) of the Constitution of India.
The Defendant relied on the judgment of Tata Press Limited v. Mahanagar Telephone Nigam Limited, 1995 (5) SCC 139, wherein the Hon’ble Supreme Court of India ruled that the public at large benefits from the information provided by the advertisement. In a democratic economy, the free flow of commercial information is essential.
DECISION AND FINDINGS
The High Court of Madras (the “Court”) observed that the intent of the advertisement, the nature of the advertisement, and the message that this advertisement intended to convey are defamatory not only to the Plaintiff’s product but also to any herbal product intended for floor cleaning.
The Court further held that the superiority of the Defendant’s product cannot be portrayed in the manner in which the advertisement presents. The impugned advertising was synonymous to saying that the product with chemicals is superior to the products with herbs.
According to the Court, the immediate impact of the impugned advertisement on viewers will be that herbal floor cleaners are ineffective. Therefore, the Court granted an interim injunction restraining the Defendant, its management, its members, affiliates, directors, servants, officers, and employees from telecasting, broadcasting, publishing, or communicating in any manner whatsoever, the impugned advertisement or any part thereof.
The present case is a typical example of disparagement or comparative advertisement. Comparative advertising is advertisement in which one party advertises its goods or services by comparing them to the goods or services of another party. That other party is usually its competitor or the leader in that goods market or service.
Such comparison is made with the aim of increasing the advertiser’s sales by either suggesting that the advertiser’s product is of the same or better quality than the comparison product, or by reducing the quality of the comparison products.
The judgment discussed herein above lays down the negative impact of such advertisements on the consumer base and observes how such defamatory commercials should not be encouraged.
–Team AMLEGALS assisted by Ms. Ishita Yadav (Intern)
For any query or feedback, please feel free to get in touch with firstname.lastname@example.org or email@example.com.