[Comparative Advertising] Cannot Permit Domex's TV Ad, Disparages Harpic: Delhi High Court

Observing that 'puffery' and 'hyperbole' may have an element of untruthfulness, the Delhi High Court Monday said an advertiser cannot disparage or defame the competitor's goods while doing comparative advertisement. 

Noting that such advertisements would always involve statement that advertiser's goods are better than that of the competitor, a division bench comprising of Justice Vibhu Bakhru and Justice Amit Mahajan emphasized that there is a line that an advertiser cannot cross.

"There may be cases where certain features of an advertiser's product may be demonstrably better than the features of his competitor. In such cases, it is permissible for an advertiser to advertise and highlight these features. The message must clearly be to highlight the superior features of his product while ensuring that the product of his competitor is not disparaged or defamed," the bench ruled. 

It was also observed that while it is open for an advertiser to embellish the qualities of its products and exaggerate claims while doing comparative advertising, it is not open for him to claim that competitor's goods are bad, undesirable or inferior. 

"Thus, it is not open for an advertiser to say "my goods are better than X's, because X's are absolutely rubbish". Puffery and Hyperbole to some extent have an element of untruthfulness," the court said. 

The court was hearing an appeal filed by Reckitt Benckisern (India) Private Limited challenging a single judge order to the limited extent of rejecting its prayer for restraining Hindustan Unilever Limited (HUL) from broadcasting a TV commercial for its product Domex. Reckitt argued HUL's ad was disparaging its product Harpic. 

In its suit before the single judge, Reckitt claimed that HUL's advertisement campaign denigrates and disparages its product Harpic. HUL's five advertisements were impugned before the single bench. 

While Reckitt sought restraining order qua all five advertisements, the single judge restrained HUL from publishing only four of them - one in print and three on Youtube, while refusing relief against the TV commercial.

Hearing an appeal against the interim order, a division bench on December 1 last year restrained HUL from airing the fifth TV advertisement as well.

In its final decision on the appeal, the division bench headed by Justice Bakhru on Monday observed HUL had clearly crossed the line in the advertisement in question regarding Domex product, adding that it not only claimed that its product was ineffective but also prima facie disparaged Reckitt's Harpic product.

After viewing the advertisement, the Court observed that DOMEX sent a message that HARPIC did not address the problem of bad odour in toilets. 

"The manner in which the impugned TVC-1 is structured, first, sends a message that Harpic only cleans without addressing the problem of bad odour and thereafter, sends the message that whoever chooses Harpic would have to live with their toilets smelling foul. This is a message that disparages Reckitt's product and, in our view, cannot be permitted," the court held. 

The bench thus made the order restraining HUL from airing the advertisement in question as absolute directing that the same shall continue till the disposal of suit before the single bench.

"We clarify that the observations made by this Court, howsoever emphatic, must be read as prima facie observations solely for the purposes of deciding whether an interim injunction should be issued restraining the telecast of the impugned TVC-1 till the disposal of the suit. None of the observations or views expressed should be construed as final or dispositive of the Reckitt's claim in the suit. The learned Single Judge shall proceed to decide the suit uninfluenced by any observations or prima facie finding of this Court," the Court added. 

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

Citation: 2022 LiveLaw (Del) 909

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