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
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
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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