A student washes her hands at a school in Abuja, Nigeria, March 20, 2020. Photo: Reuters/Afolabi Sotunde.
What happens when two well-known germ-killer brands get at loggerheads during a pandemic over an advertisement?
In March 2020, Hindustan Unilever Ltd. (HUL) approached the Bombay high court against Reckitt Benckiser (India) Pvt. Ltd. (RB) claiming the latter allegedly tried to denigrate their product, Lifebuoy. Specifically, HUL said RB had advertised its product, Dettol, in a way that allegedly mocked Lifebuoy’s utility, even as India’s COVID-19 epidemic was getting underway.
In RB’s advertisement, a doctor asks patients to keep away from a soap and depicts their liquid hand-wash to be more effective. The soap is shown as a red bar that resembles the shape, colour and configuration of Lifebuoy soaps. Shortly after, HUL approached the high court and sought Rs 1 crore in damages and a permanent injunction against RB.
A single-judge bench of the Bombay high court, headed by Justice K.R. Shriram, heard the case before the matter could venture into substantial claims and averments. RB subsequently agreed to suspend the use of the impugned ad for one month.
While we’re struggling as a nation to get our economic act together even as its people are caught between multiple medical advisories, hygiene brands saw an opportunity to tussle over advertising and increase their market shares.
According to WHO guidelines, washing hands with soap and water is an effective way to protect people from the novel coronavirus virus. So HUL contended that RB’s ad went against this wisdom, and sought to stoke panic in consumers’ minds instead of spreading awareness.
Based on Indian courts’ established principles, a party needs to fulfil certain requirements for a claim of disparagement to succeed. For one, there should be a misleading or false claim denigrating the other party’s product. Second, the claim must be likely to deceive a substantial segment of prospective consumers and to influence consumer behaviour with an intention to lower the product’s reputation.
While deciding whether a commercial was disparaging, its intent, manner and effect shouldn’t ridicule or condemn a rival’s product.
Often, a party counters a disparagement claim using the right to freedom of speech, under Article 19 (1)(a) of the Constitution, or by invoking section 30(1) of the Trademarks Act 1999. The latter allows the bona fide use of a trade name as long as it complies with honest practices in industrial or commercial matters, such use doesn’t take unfair advantage or harms the reputation of a trademark, and rival products aren’t shown in bad light.
The concept of comparative advertising is relevant here. According to a European directive, advertising is comparative if it explicitly or by implication identifies a competitor or their goods/services. Comparing one’s product with relevant, verifiable and representative features, sans misleading suggestions, may be a legitimate way to inform consumers.
However, there is a fine line between this and disparagement. Disparagement kicks in if an advertisement discredits or denigrates a competitor’s product, or confuses the audience.
As Indian advertising laws are still evolving, we can take a cue from the US and the EU: both entities are quite liberal and have adopted a common pattern to deal with comparative promotional practices. For example, US trademark law doesn’t allow comparative advertising if the advertisement presents a false narrative or is deceptive. However, the onus is on the claimant alleging disparagement to prove this.
We should adopt such a practice in India – such that corporations aren’t allowed to make false and misleading statements about their products without any scientific evidence. Making such claims during a pandemic could actively jeopardise the health of many. In the HUL v. RB case itself, resorting to distasteful claims subverted RB’s own responsibility as an advertiser, while the rest of the country was scrambling for a cure.
So the need of the hour is for legislators to craft and adopt stricter guidelines in response to multiple instances of disparagement claims being brought to courts.
Yashvardhan Rana is an intellectual property lawyer in New Delhi.