Can Indulge In Hyperbole But Cannot Claim Competitor's Product To Be Bad - Delhi HC Upholds Restraint Of Domex Ads
A Delhi High Court Bench of Justice Vibhu Bakhru and Justice Amit Mahajan has dismissed an appeal filed by Hindustan Unilever Limited for its toilet cleaner "Domex" by holding that "an advertiser can indulge in puffery and hyperbole to reflect its product in a good light. However, it is not open for an advertiser to claim that the product of its competitor is bad, substandard or its use would be detrimental to the interest or well-being of the customers".
Senior Advocate Amit Sibal, among others, appeared for the appellant. Senior Advocate Chander M Lall, among others, appeared for the respondent.
In this case, HUL appealed against the order restraining it from publishing a print advertisement and airing 3 YouTube videos. The Single Bench of the High Court had found that the advertisements for the toilet cleaner sold under the tradename "Domex" were found to be, prima facie, disparaging the toilet cleaner sold by the respondent (Reckitt) under its trademark "Harpic".
HUL claimed that the impugned advertisement and the impugned videos truthfully depict that the effect of its product lasts longer than Reckitt’s product. Thus, it was contended that the impugned advertisement and videos are permissible and should not have been interdicted. Reckitt disputed the claims made by HUL and complained that the impugned advertisement and the impugned videos were misleading and disparaging.
The Division Bench of the High Court analysed a catena of judgments and noted that "It is now settled law that while it is open for a person to exaggerate its claims relating to his goods, it is not open for him to denigrate or disparage the goods of another person. It is also settled law that honest comparative advertisements are permissible. This implies that not only the statements of fact made in the advertisements are accurate and true but that the overall message delivered by the said statements of facts is also not misleading. Obviously, this would have to be determined from the standpoint of the customer viewing the said advertisement".
On examining the advertisement and videos, the Court observed that the overall message was that if one uses Harpic to clean the toilet, the toilet bowl will emanate a foul smell but if one uses Domex, then the toilet would smell pleasant.
In light of the same, the Court took the view that "As stated above, an advertiser can indulge in puffery and hyperbole to reflect its product in a good light. However, it is not open for an advertiser to claim that the product of its competitor is bad, substandard or its use would be detrimental to the interest or well-being of the customers. In the present case, the advertisement denigrates Reckitt’s product by reflecting that the toilet bowl cleaned by the use of the said product would result in the same remaining unclean and emanating a foul smell. The impugned advertisement is also untruthful, at least to the extent that it reflects that the toilet cleaned by its product would emanate fragrance, while the one cleaned by Harpic would emanate a foul smell. As stated above, HUL’s claim rests on the use of ‘Saline’, which according to HUL has hydrophobic qualities.".
The Court upheld the view that the shape of the Harpic bottle's shape was Reckitt's registered trademark. In that context, it was said that "the similarity between competing trademarks is not required to be resolved by juxtaposing them and closely examining various features of the trademarks. Similarity between the trademarks is required to be viewed from the standpoint of a person of average intelligence and an imperfect recollection". Therefore, it was held that "Trademarks are source identifiers and therefore, we find no infirmity with the reasoning of the learned Single Judge that the depiction of the bottle of an ordinary toilet cleaner in the impugned videos is likely to be identified as Reckitt’s product Harpic".
Dismissing the appeal, the Court observed, "There is no dispute that comparative advertisement is permissible. However, the same cannot disparage the products of the competitors. It is permissible to advertise that a particular feature or quality of the product is better than that of the competitor. However, this is clearly subject to the condition that the overall advertisement must not be misleading. A statement of fact or a representation made in an advertisement must not only be accurate but should not be misleading, as well. This has to be viewed from the standpoint of the customers that the advertisements seek to target. For instance, it is possible that a particular feature of the product, which has no material relevance, is compared with the feature of the competing product to craft an advertisement reflecting the product of the advertiser to be superior to the product of its competitor. Whilst the statement regarding comparative features may be true, the overall commercial advertisement may be grossly misleading".
No orders were passed as to costs.
Cause Title: Hindustan Unilever Limited v. Reckitt Benckiser (India) Private Limited