An advertiser cannot disparage or defame the competitor’s goods while doing comparative advertisments

I. INTRODUCTION:

The High Court of Delhi vide judgment dated 26th September 2022 in the case titled “Reckitt Benckiser (India) Pvt. Ltd vs. Hindustan Unilever Limited [FAO(OS)(COMM) 149/2021]” passed an order of injunction against the Defendant I.E., Hindustan Unilever Limited to the restrain their advertisement on the grounds that an advertiser cannot disparage or defame the competitor’s goods while doing comparative advertisements.

II. FACTS OF THE CASE:

M/s Reckitt Benckiser India Private Limited (hereinafter referred to as “Plaintiff”) is a company is engaged in the business of fast-moving consumer goods (“FMCG”). The Plaintiff is involved in the manufacturing of a well-known toilet cleaner under the trade mark ‘HARPIC’.

M/s Hindustan Unilever Limited (hereinafter “Defendant”) is also a company that is engaged in the business of FMCG, and manufactures a toilet cleaner, which is sold under the trademark ‘DOMEX’.

The Plaintiff asserts that advertisement campaign by the Defendant disparages and denigrates its product ‘Harpic’ and infringes its trademark. The Plaintiff had filed a suit seeking permanent injunction restraining the Defendant from telecasting, broadcasting and publishing 5 advertisements before the single bench of the High Court of Delhi. The learned Single Judge found the 4 advertisements to be disparaging. However, the Court did not accept that the impugned TVC-1(hereinafter ‘impugned advertisement’) indicated a prima facie case of disparagement. The present Appeal is filed against the decision of the Single Judge regarding the impugned advertisement.

The Plaintiff asserted that ex facie observing the impugned advertisement makes it clear that it not only promotes ‘DOMEX’ but also disparages ‘Harpic’ by stating that Harpic is ineffective to combat bad odour. The Defendant, on the other hand contended that the learned Single Judge had correctly applied the law and found that the impugned advertisement was not disparaging.

III. ANALYSIS BY THE COURT

To resolve the above-stated dispute the Court referred to a series of judgments and observed the following –

i. Commercial speech is a part of the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India. However, such protection cannot be extended to misrepresentation or where the advertisements fall foul of the validly enacted law. In cases where competing rights are involved, finding an apposite balance is necessary. [Supreme Court of India in the case titled ‘Tata Press Limited v. Mahanagar Telephone Nigam Limited1’]

ii. The protection of Article 19(1)(a) of the Constitution is available. However, if an advertisement becomes a false, misleading, unfair or deceptive advertisement, it would certainly not have the benefit of any protection. [High Court of Delhi in the case titled ‘Dabur India Ltd. v. Colortek Meghalaya Pvt. Ltd. & Anr. 2’]

iii. The intent of the advertisement can be understood from its story line and the message sought to be conveyed and the overall effect of the advertisement does it promote the advertiser’s product or does it disparage or denigrate a rival product? The manner of advertising is the comparison by and large truthful or does it falsely denigrate or disparage a rival product? While truthful disparagement is permissible, untruthful disparagement is not permissible. [High Court of Delhi in the case titled ‘PepsiCo. Inc. And Ors. v. Hindustan Coca Cola Ltd.3 ]

iv. It is open for a person to exaggerate the claims relating to its goods or services and embellish their virtues or benefits, it is not open for a person to denigrate or disparage the goods of another person. [High Court of Delhi in the case titled ‘Colgate Palmolive (India) Ltd. v. Hindustan Unilever Ltd.4]

v. It is open for a person to claim that he is the best seller in the world or a best seller in the street but it is not open for him to denigrate the services of another. [De Beers Abrasive Products Ltd. and Others v. International General Electric Co. of New York Ltd. and Another5 ]

In the light of aforementioned principles, the Court observed that a comparative advertisement would always involve the statement that the goods of the advertiser are better in some aspects than that of the competitor. But there is line that an advertiser cannot cross. An advertiser cannot disparage or defame the goods of his competitor. The Court after examining the impugned advertisement noted that the defendant has clearly crossed the line. It not only claims that its products are better than Reckitt’s but it also, prima facie, disparages the Plaintiff’s product.

The Court stated that the impugned advertisement not only projects a message that ‘DOMEX’ fights odour for a longer period of time, it also sends a clear message that Harpic does not address the problem of foul smell that emanates from toilets. This is a message that disparages Plaintiff’s product and cannot be permitted. The Court held the findings of the learned Single Judge as erroneous and could not be sustained.

IV. CONCLUSION OF THE COURT:

Based on the aforementioned observations, the Court, passed an order of interim injunction restraining the telecast of the impugned advertisement till the disposal of the suit by Single Judge of High Court of Delhi.