The world of Fast Moving Consumer Goods (FMCGs), thrives more often than not on their ability to advertise and make the product attractive to consumers at large, comparisons, puffing and praise being common to the exercise. This seems to be cashed in further in sensitive sectors such as healthcare, whereby comparative advertising seems to be becoming the norm of the day.
The most evident and recent incidents of comparative advertising resulted into a clash between Reckitt Benckiser India ltd and Hindustan Unilever Ltd. Hindustan Unilever, on both occasions, faced the squabble against Reckitt Benckiser's popular Dettol. The first instance was for their use of "nahane ke paani mein 'do dhakkan' antiseptic liquid" (and the use of a liquid, which made an obvious reference to Dettol) in a TV commercial for Lifebuoy (IA No. 11467/2012 in CS (OS) No. 1834/2012) while the second one disparaged Dettol Healthy Kitchen Dish and Slab Gel as a "Harsh Antiseptic" in its print commercial for Vim Liquid (CS(OS) No. 375/2013).
Both these instances, adjudicated by the Delhi High Court with a concurrent view, pronounced the governing standards, in regard to commercial disparagement, making it crystal clear that while a trader is entitled to puff up his goods in comparison to his competitors goods but he cannot denigrate or disparage his competitors by saying/depicting that the goods of his competitor are bad, inferior, or undesirable while doing so. The court clearly stated that any innuendos or references to an undesirable effect, would qualify as an act of "product disparagement", thus disallowing comparisons of such nature.
While clarifying this aspect, the Court also considered that advertising being commercial speech, is protected by Article (19) (1) (a) of the Constitution, (as reaffirmed in Tata Press Ltd. V. MTNL Ltd. , AIR 1995 SC 2438). However, it carefully noted that the freedom of speech and expression does not permit anyone to disrepute or denigrate the other and that it would be far-fetched to say that an advertiser has the liberty to disparage the product of his competitor without any check, under the garb of freedom of speech.
The Court went on to refer and emphasize that since an advertisement campaign, creates an immediate impact on the purchaser's mind and should be used very carefully and painstakingly. They also stated that for consumers, comparative advertising is beneficial as it increases awareness and therefore, permissible, however the same may not be undertaken by pulling down the reputation of one's competitor by showing its product in debauched light. In this view, the Court disallowed the nature of comparison carried out by Hindustan Unilever.
The Court also went on to comment that the two brands being equally renowned in the Indian market, did not call for a crooked manner of comparison, as against honest comparisons, which are not bad in law.
With respect to the Dettol-Lifebuoy television advertisement, the Court's attention was also directed to the fact that a virtually identical advertisement was used in South Africa, which had subsequently been restrained from public display in the jurisdiction. The Court in this view, granted an injunction on the comparative advertisement, and allowed the advertisement to be aired the advertisement only after ample changes are made to it, so that no further misrepresentation or deceit for filching the Dettol's trade and their goodwill, is caused.
With respect to the print advertisement, the Delhi High Court, disapproved of the use of the term "harsh" along with the indicative word 'antiseptic' with respect to cleaning utensils from which food is consumed. The Court did so, on the basis that consumers were well-acquainted with the brand Dettol to be synonymous with the term antiseptic in the Fast Moving Consumer Goods (FMCG) market in India, and that such association, was prejudicial to their kitchen cleaners market, in which they were new entrants. Here too, the Court passed an interim order restraining the defendant to the extent required, from publishing the impugned advertisement or any other similar advertisement or depiction aimed at disparaging the goodwill and reputation of the brand Dettol or its product Dettol Healthy Kitchen in all media including print and/or electronic media.
It clearly appears that the Court has taken these decisions, keeping in mind a holistic view of the manner in which the FMCG industry operates. The decision appears to warn that although brand owners may have a short cycle to operate upon, they need to do so, on a very careful strategy, ensuring that no disparagement or ill-repute is attributed to their competitors in the sector.
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