Comparative Advertising Permissible For Establishing Superiority Of One's Goods, Without Defaming Goods Of Others: Delhi High Court

While dealing with a suit concerning the issue of comparative advertising and trademark infringement, the Delhi High Court has observed that an advertiser has to be given enough room to play in the advertisement and that the plaintiff ought not be hypersensitive towards the same.

The Bench however made it clear that,

"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."

Justice Jayant Nath was dealing with an application seeking interim injunction filed by the company involved in the manufacturing of the toilet cleaner under the trademark 'HARPIC' since 2001 against the defendants which was engaged in the manufacturing of toilet cleaner 'DOMEX'.

It was the case of the plaintiff that the advertisement of defendant concerning DOMEX product was allegedly made in order to vilify, denigrate and defame HARPIC toilet cleaner.

It was also stated that five advertisements were launched by the defendant which allegedly claimed HARPIC to be ineffective and useless for toilet cleaning. According to the plaintiff, the impugned advertisement ridiculed HARPIC consumers and prompted them to immediately shift their preferences to DOMEX. 

Accordingly, the plaintiff sought an injunction to restrain the defendant from publishing, broadcasting or putting in public domain the five advertisements i.e. TVC, Social Media and Print Advertisement.

Hearing the submissions of the parties and perusing the said advertisements, the Court with regards to the first advertisement observed thus:

"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."

The Court added that 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, the Court said that 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.

"In my opinion, 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. As noted above, 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. In my opinion, the plaintiff has failed to make out any prima facie case regarding the TVC," the Court observed. 

However, perusing the other three advertisements, the Court opined that a comparison of the bottles depicted in the impugned print advertisements, prima facie showed that the same was deceptively similar to the plaintiff's mark.

"A bare perusal of the second, fourth and fifth advertisements shows that prima facie the said advertisements seek to denigrate and malign the product of the plaintiff as contained in the alleged generic bottle," the Court said. 

The application was accordingly disposed of by the Court after ordering thus:

"The averments made in the four advertisements, namely, second, third, fourth and fifth, in my opinion, prima facie, at this stage, appear to disparage the product of the plaintiff. As noted above, 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. I accordingly restrain the defendant 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."

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

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