The Delhi High Court has restrained Hindustan Unilever Limited from using NIVEA products as comparative advertisement campaigns of PONDS and has held that comparing other brand's products, either expressly or impliedly, is prima facie misleading and disparaging, and causes irreversible prejudice.

An application was filed by the Plaintiff herein seeking permanent injunction restraining infringement of trademark, unfair trade practice, disparagement, dilution and damages against the Defendant alleging dishonest conduct by using the signature elements of the distinctive look trade dress of plaintiff’s ‘NIVEA’ products.

The Bench of Justice Anish Dayal, while restraining Hindustan Unilever’s PONDS to use Nivea Products for advertising, observed, “In these facts and circumstances, this Court is of the opinion that the impugned activity undertaken by defendant choosing to compare plaintiff’s ‘NIVEA’ products (either expressly or by implication or association) and defendant’s products, especially those under the trademark ‘Ponds’, are prima facie misleading and disparaging, and cause irreversible prejudice to plaintiff… Defendant, their directors, wholesalers, distributors, partners, proprietors, agents or assignees are restrained from conducting the impugned activity or such similar marketing/advertising activity, comparing plaintiff’s ‘NIVEA’ products (either expressly or by implication or association) and defendant’s products (especially those under the trademark ‘Ponds’), which amount to disparagement or denigration of plaintiff’s products or business.”

Advocate Keshav Thakur appeared for the Plaintiff whereas Senior Advocate Chander M. Lall appeared for the Defendant.

The Court also held, “In an in-mall marketing campaign, the possibilities of imputation, aspersion, implication, overstatement, leading to even a slight disparagement, will be limitless. The marketing executives body language, gestures, conversations or suggestive indications will also animate the promotional interaction. There is therefore, intrinsically lesser material available to the court to consider and the threshold would have to be slightly lesser in this regard when considering possibility of the impugned activity being misleading or disparaging.”

The matter relates to the highly distinctive trade dress claimed by the Plaintiff for its ‘NIVEA’ brand of products written over a distinctive blue background, created and developed for Plaintiff’s products ‘NIVEA Crème’ in 1925. Around 2021, the Plaintiff became aware that the Defendant had been undertaking marketing activities involving their sales representatives being present in various malls in Delhi and Gurgaon showing a comparison of a cream in a blue tub identical to the Plaintiff’s ‘NIVEA Crème blue tub’ (used without the sticker) and defendant’s product ‘Ponds Superlight Gel’.

It was alleged that the sales representatives of the Defendant would apply cream from the “blue tub” on the skin of the walk-in customers on one hand and the Defendant’s product on the other hand. Thereafter, the representatives would use a magnifying glass in an attempt to assure the customers that the blue tub product left an oily residue on their skin as compared to the Defendant’s product ‘Ponds Super Light Gel’.

The Court also said, “This Court is of the opinion that the law relating to advertisements in any form whether print, digital, TVC will extend to such campaigns as well, since ultimately it is a method of promotion and marketing of company’s product to a consumer, and in fact in a much more personalised and interactive set up. What communication is being done to a user in that interaction is open to anybody’s imagination. At least in an advertisement in print digital, medium or TVC, the assessment is limited to what is seen or heard in the commercial.”

The Court said that the Defendant’s knowledge about the “Pantone Blue Color” being associated with NIVEA was evident. The Defendant could have easily used a different colour tub and written ‘heavy cream’ on top and by using an ‘unlabelled’ distinctive blue colour jar/tub for the cream, the Defendant has uncategorized the product, leaving the consumer with absolutely no information as to the consistency of the cream being used for comparison, it further said.

Accordingly, the Court disposed of the Application.

Cause Title: Beiersdorf AG v. Hindustan Unilever Limited (Neutral Citation:2024:DHC:3875)


Plaintiff: Advocates M.S. Bharath, V.S. Krishna, Ayush Sharma and Ashish Sharma

Defendant: Senior Advocate Chander M. Lall, Advocates Pragya Mishra, Shashwat Rakshit and Ankur Sangal.

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