Dettol Vs Santoor Handwash: Delhi High Court Refuses To Injunct Broadcasting Of Wipro’s Advertisement
The Delhi High Court has observed that comparative advertising includes the right to show the competing product but denigration or disparaging rival’s product is impermissible. “While it is permissible, therefore, to state that the advertised product is superior to the competitor’s, it is not permissible to attribute this superiority to some failing, or fault, in the product of...
The Delhi High Court has observed that comparative advertising includes the right to show the competing product but denigration or disparaging rival’s product is impermissible.
“While it is permissible, therefore, to state that the advertised product is superior to the competitor’s, it is not permissible to attribute this superiority to some failing, or fault, in the product of the competitor. An advertisement cannot claim that a competitor’s goods are bad, undesirable or inferior. The subtle distinction between claiming one’s goods to be superior to the others’, and the other’s goods to be inferior to one’s, has to be borne in mind,” Justice C Hari Shankar observed.
The court made the observations while refusing to injunct the broadcasting of an advertisement of Wipro Enterprises Private Limited with respect to its product Santoor handwash which Reckitt Benckiser Private Limited claimed disparaged its product Dettol handwash.
Dismissing Reckitt Benckiser’s plea seeking ad interim injunction against Wipro, the court said that the impugned advertisement do not slight either Dettol or any other hand wash.
“Within the limits of permissible assertions, comparative advertising is protected under Article 19(1)(a) as commercial speech. In comparative advertising, a certain amount of disparagement is implicit,” the court said.
Emphasising that an advertisement has to be seen as a whole and not frame by frame, the court said that an advertiser might make an unfavourable comparison while promoting a product, but that may not necessarily affect the story line or message or have an unfavourable comparison as its overall effect.
“The advertisement was to be viewed as a normal viewer would view it, and not with the specific aim of catching disparagement. Words used in the advertisement are meant to be understood in their natural, general and usual sense and as per common understanding,” Justice Shankar said.
The court added that imploring the public to use the advertised product instead of others is not objectionable in law, so long as there is no message which disparages or denigrates the rival product.
“The reasonable and right thinking viewer, if he desires to try Santoor after seeing the impugned advertisement in place of Dettol, or any other hand wash that he was earlier using, would do so not because the impugned advertisement denigrates other hand washes as being bereft of moisturizing or softening capabilities, but because Santoor contains sandal, and sandal moisturizes. There is an ocean of difference between these two impressions. The first disparages; the second does not. The impugned advertisement, in my opinion, is on this side of the lakshman rekha, not that,” the court said.
Title: RECKITT BENCKISER (INDIA) PVT. LIMITED & ANR. v. WIPRO ENTERPRISES (P) LIMITED
Citation: 2023 LiveLaw (Del) 419