COMPARATIVE ADVERTISING: LIFEBUOY VS DETTOL

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What is Commercial Disparagement in Advertising?

Commercial disparagement, also referred to as business disparagement, is a legal offense. There is a tortious liability for the person accused of commercial disparagement. If he makes some derogatory comment against the title of an individual, to his property or his property in order to discourage other people from doing business with that person, a person is said to have committed commercial disparagement.

What is Comparative Advertising?

Comparative advertising is an advertisement where a business either directly or indirectly evaluates its product with competing products. It is a marketing tactic in which the product or service of an organization is seen as superior to a competitor's. A comparative advertisement strategy may involve a side-by – side comparison of the features of the products of a business with those of its rival.

India 's laws approve comparative advertisement, but prevent company disparagement. Comparative advertising could lead to commercial disparagement if the manufacturer makes some false claim as to the competitor or his product, or if the product of the competitor is inferior to the product of that competitor. The Supreme Court, in landmark judgment of Tata Press Limited v. Mahanagar Telephone Nigam Ltd, held that the comparative advertisement is protected under Article 19(1)(a) of the Constitution14 as a form of free speech. The restrictions can be placed on the comparative advertisement by the government only with the provisions of Article 19(2) of the Constitution. Furthermore, the corporate entity’s protection under Article 19(1)(a) of the Constitution was also granted. From this, it can be concluded that competitors have freedom of speech to promote their goods and compare them with rival manufacturers.

Hindustan Unilever Ltd v. Reckitt Benckiser

A commercial-disparagement conflict between the two major Fast Moving consumer goods with the in the midst of the COVID-19 crisis. The dispute was brought by the manufacturers of Lifebuoy soap-Hindustan Unilever Limited ('HUL') against the manufacturers of Dettol hand wash- Reckitt Benckiser (India) Private Limited ('RB') before the Honorable Bombay High Court. The latest Dettol hand wash advertisement reported that the HUL Lifebuoy advertisement was commercially dismissed. To encourage the importance of washing hands to preserve self-hygiene, Lifebuoy soap marketed. RB released an ad that was supposedly more powerful than normal bar soap (shown as red bar soap) with its Dettol hand washing, followed by HUL 's commercial. The position of HUL was that Reckitt Benckiser's had attempted to disparage Lifebuoy soaps from Hindustan Unilever, and the red bar form was evident in the ads of RB, causing HUL to move the court to seek damages and a permanent injunction. The said advertisement is no more available, but the premises of action of HUL according to information available to the public are as follows:

• The Dettol advertisement misrepresented a medical practitioner telling people to stay away from the soap, which highly resembled the LIFEBUOY soaps in terms of shape, size and colour.

• this was falsely indicating that soaps are inferior and DETTOL hand wash is superior and more effective especially against LIFEBUOY.

• HUL also relied on the recommendations of the World Health Organization to preserve personal hygiene in fighting with COVID. It claimed that the commercial from RB was against it and they intended to establish discrimination regarding the use of soaps instead of promoting awareness.

• According to the plaintiff, “Nations around the world express the contrary and ask individuals to wash their hands with soaps and water, while the defendant induces uncertainty in the general population by wrongly propagating that soaps are useless by maligning the market leader in the category of soaps. The conduct of the defendant is irresponsible and against public morality when the need for the hour is for all to come together and work towards the common good.”

HUL demanded damages for Rs 1 crore and a permanent order for RB.

In order to succeed for a claim of disparagement, HUL will need to prove:

• that RB slandered the products because of a misleading/false claim concerning HUL’s product,

• that the claim made by RB deceived the customers’ minds or triggered deception,

• the market would consider goods from HUL as inferior, eventually impacting the behaviour of customers, decisions, and eventually leading to HUL’s business loss.

RB will defend against HUL ‘s arguments by showing that the above conditions have not been met and arguing that puffery is not allowed under Section 30 of the Trade Marks Act, 1999, in defence of the honest practice. The said clause provides for acts such as saying that its goods are better, without denigrating the goods of the competitor. 

The Court observed that the plaintiff has a prima facie case in the commercial challenge by comparing his Lifebuoy Soap with Dettol Antiseptic Liquid's plaintiff as obvious from the use of the words "USSE STRONG”. The Court also found that the defendant's ads demonstrated that the defendant's dettol Soap had an outstanding potential to remove germs when portraying an antiseptic solvent as a harmful and ineffective substance in a bad light. Therefore, it is found to be prima facie disrespectful of the product of the complainant and ruled to be in violation of the earlier orders / judgments binding on the defendant, unless temporary relief is obtained, the complainant will suffer irreparable harm and injury. In addition, since the defendant has not even broadcast the advert for the last one and a half years, it is found that the balance of convenience is in favour of the claimant and against the defendant.

The court observed in the comparative advertising case of FMCG, HUL and RB, first, the frustration will be reduced in gross cases similar to it and in addition to the granted cases, secondly, there should be an investigation to see the impact of marketing on advertising. Next, the court found the repeated instances of these claims for the same reason when going over them, which caused disappointment and resulted in temporary injunctions. The court ruled in favour of the plaintiff in the final judgement and the injunction was granted to the defendant by forbidding him to air the ads until the judgement of the case.

BY:-

Raksha Singhal