India: Glaxo Fails At Establishing Its Ad To Be "Taller Stronger Sharper"

Last Updated: 17 August 2009

Glaxosmithkline producer of a range of health and medical products in an advertising row for its product Horlicks' "Taller Stronger Sharper" campaign initiated an action in passing off on Abbott Healthcare (Glaxosmithkline Consumer Healthcare Ltd. v. Abbott Healthcare Pvt. Ltd 2009 (40) PTc 437). Glaxo alleged Abbott of copying their slogan 'Taller Stronger Sharper' used in the second-last frame of the television commercial for Horlicks. Glaxo claiming the slogan to be the most prominent feature of its commercial, as also being the theme used in danglers and other promotional material employed by Glaxo, they stated that the same came to be so exclusively associated with Horlicks. Eventually they stated that any form of imitation thereof by any other person would amount to deceit for filching the trade and trading upon the goodwill acquired by them vis-à-vis their renowned product.

Abbott in this regard did not contest either Glaxo or Horlicks' reputation. The Court noted that Glaxo had sufficiently portrayed the several tens of crores it had invested in its TV advertisement campaign, wherein the punch-line was the most recognizable feature. The Court also noted that Glaxo's turnover and the sales figures for Horlicks were unquestioned.

The Court also noted that Glaxo's grievance was limited to the last frame of the first defendant's commercial and, in particular, to the three superlatives used therein and that no complain vis-à-vis the use of a competing product by the name PediaSure was in question. The three comparative adjectives in the second-last frame of Horlicks' commercial was only in contention in as much as a t a viewer would associate Abbott's product with Glaxo's or form an impression that PediaSure came from the same stable as Horlicks, thus causing dire confusion.

The species of passing off amounting to exhortation of the plaintiff was recognized in Cadbury Schweppes Pty. Ltd. & ors. v. Pub Squash Co Pty. Ltd. 1981 (1) All ER 213 and the same was said to form the basis of the action in the present case. Taking note of the findings of the Privy Council, Glaxo reiterated that the law enunciated by the Privy Council recognized that the tort is no longer anchored to the name or trademark of a product or business, but is in fact wide enough to encompass other descriptive material such as slogans or visual images or advertising campaigns. The test, it was found, was whether the product had derived from the advertising a distinctive character which the market recognized. The court noted that this dictum was ratified in India via ICC Development (International) Ltd. v. Arvee Enterprises & Anr.( 2003 VII AD (Delhi) 405)

Glaxo claimed that they were broadcasting the commercial since June, 2005, while in February, 2008 they noticed the launch of the deceptively similar campaign. Glaxo in the course of arguments stated that they had called upon Abbott to desist from desisting to the continued telecast of their commercial carrying the same exit theme in early April, 2008 and received a reply only in end-June, 2008. The ad after being put on hold for some time lulling Glaxo into believing that the advertisement had been abandoned and was only reintroduced after June, 2008. Abbott asserted that in its letter of June, 2008 to say that they had accepted that "proprietary rights" could be acquired by a television commercial, while alleging that Glaxo was infringing their rights by the telecast of Horlicks commercials.

Taking note of the marketing entire "taller, stronger, sharper" campaign, the Court stated that what needed to be seen was whether the theme/meaning the three words had, or conveyed had become so exclusively associated with Glaxo or its product that the recall value thereof is so overwhelming that it leads to confusion and deceit that are the twin planks in establishing passing off and, whether consequently in law, any claim of exclusivity could be made over the concept and the manner of depiction thereof.

Abbott stated that the catch-line "sabse tallest, strongest, brightest" was a prominent feature of a commercial that it launched in the year 2001 and the modified storyboard of its present commercial contained same catch-line. Abbott asserted that in the promotion of a nutritional drink, it was only natural that the manufacturer would harp on the efficacy of the product in honing physical and mental attributes. They further went on to aver that no one manufacturer of a nutritional drink can claim a monopoly over an idea that is generic to the product and is directly connected to the alleged efficacy of the product.

Citing a number of authorities, such as Klissers Farmhouse Bakeries Ltd. v. Harvest Bakeries Ltd (1989 RPC 27) they propounded the principle that the more descriptive the words used for a product, the greater the burden on the party asserting exclusivity to establish such exclusivity. The case, cited dealing in an action in passing off relating to the form of packaging in polythene bags used in connection with the sale of bread, was contended to be inapplicable to the case at hand by Glaxo. The Court accepting Glaxo's view stated that such a case cannot be cited for the matter in issue as oranges and apples cannot be bunched for comparison.

Abbott cited several other English judgments as well to strengthen its stand. The Court upon viewing the two commercials opined that the case was undoubtedly maintainable in as much as the case canvassed is an intangible property right in the advertised description of a product by a manufacturer.

The Court acknowledging the nature of the advertising campaign noted that the test to operate is to inquire whether there is a likelihood of confusion resulting from the manner in which Abbott's product had been advertised, particularly at the closing stage and whether Glaxo was entitled to the exclusive use of the idea. The court also stated that laudatory epithets could be used by a manufacturer but to claim exclusivity a higher element of distinctiveness has to be demonstrated.

Giving due heed to the nature of the product and the target audience, the Court opined that the nature of the right that was sought to be asserted would make it irrelevant as to whether a part or the entirety of the slogan is copied. The Court opined that the usage of different grammatical variations of the words, albeit bearing the same sense was sought to be projected. The essence of a right was said to be as much dependent on the resemblance of the words as on the identity of its thematic content and the exclusivity in such a case was said not be in the words or the theme used by way of puff, but in how they were said or shown or depicted. The Court in this regard concluded that Abbott had not copied the stylized form in which Glaxo presented its slogan in the commercial. Both parties were said to have demonstrated that their products were designed and contain ingredients to enhance growth. However, Glaxo was stated to have failed to establish a prima facie case warranting the stoppage of Abbott's advertisement campaign.

© Lex Orbis 2009

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