HINDUSTAN UNILEVER LIMITED Introduction
In today's fast paced globalized world, it is advertising which leads the way for brands as it is one of the most effective channels to reach out to the masses and gain momentum in business. It would be safe to say that, "if brands were humans, advertising would have been their voice". No brand today leaves a stone unturned to get itself noticed. One such way is comparative advertising.
Facts
The present case is a case of appeal where the appellants were well known manufacturers of market consumer goods including a variety of soaps with brand names like LUX, DOVE, and PEARS. The Respondent, who was the defendant, is a competitor of the appellants and who dealt in the same goods as thoseof the appellants. The facts of the case at hand revolved around the Respondent's advertisement which used titles such as "Sach Coming Soon" ("Truth Coming Soon") and "Filmstars ki nahi Science ki suno" ("Listen to science, not to film stars"). These ads seemed to compare the rival soaps,i.e.,the soaps marketed by Respondent using brand names SEBAMED and Chittawan with the soaps of the Appellants namely, Lux, Dove and Pears. The concept of the ad revolved around the pH level of the soaps, which is an index of alkalinity of toilet papers or bathing soaps. The ad claimed that a product having pH value above 6 is not safe to be used especially for sensitive skin. It supported this claim in the favor of its brand by comparing the pH value of the soaps of Appellants with that of soaps marketed by itself. Comparing the two rival soap brands, the advertisement claimed that the pH values of Dove, Lux and Pears are 7, 10 and 10 respectively and the pH values of Respondent's soap is 5.5. Placing reliance on the said claim, the Respondents asserted in the advertisement that the Respondent's soap is a safe product as compared to the Appellants' product which is unsafe for sensitive skin. The Appellants considered this comparison to be disparaging their brands' reputation in the market. The Appellants contended that though it is allowed for the advertisers to highlight the best qualities of their goods and services, it is not allowed to disparage the image of its competitor. Therefore, the Appellants sought for relief in the form of injunction on the use of such claimsin the Respondent's advertisement. However, much to the Appellants' disappointment, the Trial Court partly granted an ad-interim injunction and partly denied relief to the Appellants. The Trial Court also restrained the Respondent from using terms like 'safe' and 'unsafe' and making a comparison with the Appellant's product Rin which is a detergent bar was also barred.
Contentions
Appellants,not content with the Judgement by the Trial Court, submit that even though the Trial Court has restricted the Respondent from using the terms 'safe' and 'unsafe', it allowed the use of the terms 'ideal' and 'non-ideal'. The Counsel appearing on behalf of the Appellants submits that as long asthe Respondent is permitted to use the terms 'ideal' and 'not ideal' in comparison with that of the Appellants' products, it will be perceived as a disparaging act.They contend that the Respondent should be allowed to showcase its product as an ideal product but presenting Appellants' product as not ideal is a clear case of denigration. Contrary to this, the Counsel appearing on behalf of the Respondents accepted the order passed by the Trial Court and submitted that the statement 'It is not perfect for sensitive skin' in the advertisement, comparing the soap of the Respondent with that of the Appellants, shall be deleted, though without prejudice to their client's rights and contentions.The statement shall apply as an ad-interim statement pending the hearing and final disposal of the Appellant's Interim application before the Trial Court.
Verdict
The Appellate Court in the instant case re-iterated the observation of the Trial Court where it was noted that an advertisement of a commercial product isa circulation of information about that product. It is necessary because the consumers buying the product should be well informed about the product. It is to be noted that pH level is an important parameter and is of much relevance when it comes to recommending one's products like toilet papers and bathing soaps.The Respondent placed its reliance on the reports and literature such as an article published by the
The last issue left with the Court was if the Respondent is allowed to claim that the Appellant's products are 'not ideal'. The Court here observed that the terms 'safe' and 'not safe' have already been restricted by the Trial Court and the Respondents have also submitted to delete the same from the future advertisements. According to the current position, the comparison is being made based on the pH level of the respective products and since it is grounded in certain scientific opinion, it is so allowed. After comparing the pH level, if the Respondent calls its product as 'ideal for skin care', it does not make much of a difference suggesting that the rival products are not so ideal. Therefore, there is no reason for ordering the Respondents to delete the reference to "not ideal". There is no disparagement with respect to the term 'not ideal' and 'ideal' because the real disparagement came with the term 'not safe' as there was no scientific basis of the same and had accordingly been ordered to be removed from the impugning advertisement by the Trial Court.
Thin line between
Statutory Stance on Comparative Advertisement
Article 19 (1) (a)2 of the Indian Constitution supports the concept of comparative advertising by protecting commercial speech as a part of the said provision. However, Fundamental Rights enshrined in the constitution are not absolute in nature. Therefore, to ensure that such rights are not misused, certain laws were brought into effect. First, in 1969 came the Monopolies and Restrictive Trade Practices Act which introduced the concept of comparative advertising. Under this Act, any representation made which is untrue in nature or disparages competing goods or other brands shall be termed as comparative advertisement. However, since the concept of globalization was seeping through and comparative advertising was becoming an interesting technique of advertising, comparative advertising was permitted under the Trademarks Act, 1999, with certain restrictions which the advertisers will have to adhere to. Section 29 (8)3 of the Trademarks Act, 1999 states that a registered trademark is infringed by any advertisement of that trademark that gives an unfair advantage, is against the trademark's repute or is detrimental to the distinctive character of the mark. Section 30(1)4 of the Trademarks Act, 1999 lists factors which the advertisers must adhere to in order to show that there was no trademark infringement.
Judicial Stance on Comparative Advertisement
Over the years, we have witnessed a shift in the perspectivethat any advertisement which brought disrepute to another brand in any manner should be barred. In the cases of
Conclusion
In the light of the case discussed, it can be safely concluded that though it is of great significance to safeguard the rights of the trademark owners and ensure that there is no disparagement of their goods and services using unfair trade practices, it should also be observed that comparative advertising is a great advertising tool for effective marketing and growth of healthy competition in the market. A reference tothe same can be taken from the
Footnotes
1.
2.The
3.The Trademarks Act, §29 (8), 1999.
4.The Trademarks Act, §30 (1), 1999.
5.
6.Colgate Palmolive Company And . V.
7.The
8.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Utkarshini Anand
Khurana and Khurana
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