Advertiser Can Indulge In Hyperbole But Can’t Claim Competitor’s Products As Bad Or Substandard: Delhi High Court

The Delhi High Court has observed 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.

A division bench of Justice Vibhu Bakhru and Justice Amit Mahajan said that while comparative advertisement is permissible, it 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,” the court said.

The bench also observed that a statement of fact or a representation made in an advertisement must not only be accurate but should not be misleading.

“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,” the court said.

The observations were made while dismissing the appeal of Hindustan Unilever Limited challenging an order of single judge dated November 09, 2021, restraining it from publishing a print advertisement and airing three YouTube videos for ‘Domex’ toilet cleaner.

The single judge had said that prima facie, the product disparaged the toilet cleaner sold by Reckitt Benckiser (India) Private Limited under its trademark ‘Harpic’.

It was HUL’s case that the advertisement and the videos truthfully depicted that the effect of its product lasts longer than Reckitt’s product. On the other hand, Reckitt disputed the claims and contended that the advertisement and videos were misleading and disparaging.

Upholding the single judge order, the bench observed that there can be little doubt that the impugned advertisement of HUL is disparaging to Reckitt’s product.

“It mentions Harpic in particular and claims that Domex fights bad smell for a longer period of time. Apart from that, it shows that the toilet bowl cleaned with Domex emanates fragrance while that cleaned with the use of Harpic emanates a foul smell,” the court said.

It observed that the 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.

“In the aforesaid view, we find no infirmity with the decision of the learned Single Judge in interdicting HUL from publishing the impugned advertisement on the ground that it, prima facie, denigrates and disparages Reckitt’s product Harpic,” the bench said.

Furthermore, the court concurred with the prima facie view of the single judge that the shape of Domex bottle, as depicted in the impugned videos, is deceptively similar to Rekitt’s trademark ‘Harpic.’

“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,” it said.

Observing that the balance of convenience was in favour of Reckitt and that a false advertisement campaign would cause irreparable loss to it, the court said: 

“Given the nature of the controversy and the facts, the learned Single Judge has not interdicted HUL from broadcasting the impugned videos but merely directed that it remove all references to Rekitt’s product and the bottle representing ordinary toilet cleaners as the same is identifiable with Reckitt’s product – Harpic.”

Title: HINDUSTAN UNILEVER LIMITED v. RECKITT BENCKISER (INDIA) PRIVATE LIMITED

Citation: 2023 LiveLaw (Del) 310

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