High Court of Delhi
Reckitt Benckiser India Private Limited vs. Hindustan Unilever Limited
MANU/DE/2964/2021
09.11.2021
Intellectual Property Rights
In comparative advertising, the comparing of one's goods with that of the other and establishing the superiority of one's goods over the other is permissible, without defaming goods of others
It is the case of the Plaintiff that, it is an internationally renowned company and is involved in the manufacturing of a famous toilet cleaner under the trademark ‘HARPIC' in India since 2001. It is stated that, HARPIC is a household name in the category of toilet cleaners and the most widely used toilet cleaner brand in the country.
The present dispute concerns an alleged advertisement blitzkrieg by the Defendant allegedly to vilify, denigrate and defame the Plaintiff's HARPIC toilet cleaner. It is stated that, five advertisements have been launched by the Defendant over the weekend which completely trash the Plaintiff's HARPIC brand, declaring it to be ineffective and useless for the purposes that it is used for. It is stated that the advertisement campaign is designed to ride upon the goodwill and reputation of the ‘HARPIC' branded toilet cleaner of the Plaintiff.
The broad legal position is that, the advertisement must not be false, misleading, unfair or deceptive. There may be some grey areas but these need not necessarily be taken as serious representation of facts but only as glorifying one's product. If advertisement extends beyond the grey areas and becomes false, misleading, unfair or deceptive advertisement, it would not be entitled the benefit of any protection. In comparative advertising, the comparing of one's goods with that of the other and establishing the superiority of one's goods over the other is permissible. However, one cannot make a statement that a good is bad, inferior or undesirable as that would lead to denigrating or defaming the goods of the other.
A perusal of the first Television Commercial (TVC) as a whole shows that, it essentially seeks to claim that to remove bad odour, DOMEX is a better solution. It does not denigrate, disparage or malign the product of the Plaintiff. The advertisement as a whole does not seek to prima facie denigrate the product of the Plaintiff, nor does it disparage the product of the Plaintiff. An advertiser has to be given enough room to play around in the advertisement. A Plaintiff ought not to be hypersensitive to such an advertisement. The Plaintiff has failed to make out any prima facie case regarding the TVC.
Further, it is manifest that the said three advertisements, namely, the second, fourth and the fifth seek to depict a mark, which is deceptively similar to the mark of the Plaintiff and further seeks to announce that the said cleaner contained in the depicted bottle is an ordinary toilet cleaner and is apparently unable to remove the stains / malodour in a toilet.
The Defendant however, relies on its patented product to state that its claim in the advertisement is correct. These are disputed questions of facts. The onus to prove that the toilet cleaner of the defendant is technically superior to that of the Plaintiff is an issue for which the onus is on the defendant. At this stage, without evidence having being led, it is not possible to conclude that the product of the Defendant is superior to that of the Plaintiff as claimed by Defendant.
The averments made in the four advertisements, namely, second, third, fourth and fifth, prima facie, at this stage, appear to disparage the product of the Plaintiff. The Defendant while promoting its product cannot be permitted to denigrate or disparage the product of a rival. Balance of convenience is also in favour of the Plaintiff. Accordingly, the Defendant is restrained from publishing the four advertisements on any forum till they remove all references to the product of the Plaintiff i.e. ‘HARPIC' or the bottle in question, which is deceptively similar to the registered mark of the Plaintiff. Application disposed off.
Tags : Advertisement Product Disparage
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