In a battle between FMCG giants on “comparative advertisement”, theHigh Court Monday restrained Hindustan Unilever Limited (HUL) from advertising a Domex TV commercial on the ground that it was disparaging to Harpic owned by Reckitt Benckiser India Private Limited.
The appeal was listed before the division bench of Justices Vibhu Bakhru and Amit Mahajan wherein Reckitt (the appellant) had challenged an order of a single judge to the limited extent that the single judge had rejected the appellant’s prayer for restraining HUL from broadcasting a TV commercial.
The dispute pertains to the broadcast of HUL’s Domex TV commercial which claims that the product is superior in fighting bad odour in comparison to Reckitt’s product Harpic. Against this commercial, Reckitt approached the High Court claiming that HUL’s advertisement campaign “disparages and denigrates its product Harpic”.
A single judge of the high court held that the advertisement published in the newspaper and the three commercials available for viewing on YouTube appeared to disparage Reckitt’s products. However, it did not find that the TV commercial as a “prima facie case of disparagement”. The single judge restrained HUL from publishing or broadcasting four of the impugned advertisements (one published in print and three available for viewing on the YouTube Channel) but declined Reckitt’s prayer to interdict HUL from broadcasting the impugned TV commercial.
The court looked at the contents of the TV commercial in the judgment and held that the impugned commercial 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.
“The manner in which the impugned TVC-1 is structured, first, sends a message that Harpic only cleans without addressing the problem of bad odour and thereafter, sends the message that whoever chooses Harpic would have to live with their toilets smelling foul. This is a message that disparages Reckitt’s product and, in our view, cannot be permitted,” the court held. In the commercial, when a woman picks up a bottle of Harpic at a departmental store, her son question’s her on why she picked Harpic over Domex, holding his nose gesturing that Harpic does not address the problem of bad odour.
The court observed, “On a plain viewing, it is clear that the message sent by the advertiser is that Harpic does not address the problem of bad odour. The astonished expression of the child and his gesture of holding his nose while asking the question whether the toilet will not stink and the mother of the child getting concerned and worried, sends out a clear message that if you use Harpic, the toilet will continue to stink because the mother, who is otherwise regularly using Harpic, has not been able to address the problem of foul odour persisting in their toilet.”
On the issue of comparative advertisement, the court held that while it is open for an advertiser to embellish the qualities of its products and its claims, it is not open for him to claim that the goods of his competitors are bad, undesirable or inferior. “Thus, it is not open for an advertiser to say ‘my goods are better than X’s, because X’s are absolutely rubbish’. Puffery and Hyperbole to some extent have an element of untruthfulness,” the court observed.
The court held that in a comparative advertisement there is a line that the advertiser cannot cross wherein “he cannot disparage or defame the goods of his competitor”. There may be instances where certain features of an advertiser’s product are better than his competitors however while highlighting these superior features, the advertiser must ensure that the product of his competitor is not disparaged or defamed.
With respect to the impugned order, the court held, “In the facts of the present case, the learned Single Judge examined the impugned TVC-1 and concluded that the advertisement did not denigrate Reckitt’s product. The Court also observed that an advertiser has to be given ‘enough room to play around’ in the advertisement and Reckitt ought not be hypersensitive to an advertisement. We have visually seen the advertisement and have little doubt that HUL has crossed the permissible limit. There is no cavil that an advertiser must have enough elbow-room to advertise its products. But in the present case, HUL has clearly crossed the line. It not only claims that its products are better than Reckitt’s but it also, prima facie, disparages Reckitt’s product.”
The court also held that the finding of the single judge that the TV commercial does not denigrate Harpic is erroneous and cannot be sustained. A division bench of Justices Vipin Sanghi and Jasmeet Singh in a December 2021 order had restrained HUL from advertising the TV commercial and the high court’s order Monday made the order “absolute, to continue till disposal of the suit”.
The court, however, clarified that the observations, however emphatic, “must be read as prima facie observations solely for the purposes of deciding whether an interim injunction should be issued restraining the telecast of the impugned TVC-1 till the disposal of the suit”.
The court held that none of the observations/views expressed should be “construed as final or dispositive of Reckitt’s claim in the suit. The learned Single Judge shall proceed to decide the suit uninfluenced by any observations or prima facie finding of this Court”.