Delhi High Court: In a suit filed by Rickett Benckiser (India) Pvt. Limited (plaintiff) who manufactures Dettol seeking a permanent injunction against telecasting, broadcasting, or publishing of the impugned advertisement by Wipro Enterprise (Private) Limited (defendant) allegedly disparaging the product. C Hari Shankar, J., refused to grant an injunction against Wipro's Santoor Handwash as the plea regarding the impugned advertisement disparages Dettol fails.
The advertisement impugned shows an adorable young girl (read Priya) who wants to play with her mother, however, her mother has been gardening, and her hands are rough and dirty. She washes her hands with Santoor Hand Wash, a product of the defendant. Having washed her hands, she goes to play with her daughter. Priya is amazed at the softness of her mother's hands. While Priya coaxes her mother into continuing to play with her, a voice-over announces: “haath itne soft ki chhodne ka mann na kare”. Priya's mother lovingly caresses her daughter's cheeks.
After caressing Priya's cheeks, her mother removes, from the shelf, a plastic bottle, labelled “ordinary hand wash”. The bottle bears the shape of the plaintiff's Dettol Hand Wash. Having removed the “ordinary hand wash” from the shelf, Priya's mother replaces it with the defendant's Santoor Hand Wash, with which she had washed her hands. A voice-over announces, simultaneously, “saadhaaran handwash ke muqable naye Santoor Handwash mein hain chandan ke gun jo rakhe haathon ko soft” (“as compared to ordinary hand washes, Santoor Hand Wash has, in it, the benefits of sandal, which keeps the hands soft”). A second voice-over announces “ab har sparsh mein komalta” (“now, softness in every touch”).
It is this that has led to the filing of the present suit.
The Court noted that the legal position that emerges from various decisions regarding comparative advertisements are as follows:
(i) Where the advertisement does not directly or indirectly refer to the plaintiff's product, the plaintiff could not claim that its product was being targeted merely because it enjoyed a lion's share of the market. The targeting of the plaintiff's product is sine qua non, whether expressly or by necessary implication. That implication cannot, however, be premised merely on the market share of the plaintiff's product.
(ii) At the same time, even if the rival product was not specifically targeted, an indirect representation, which was sufficient to identify the product, was as good as direct targeting.
(iii) Within the limits of permissible assertions, comparative advertising is protected under Article 19(1)(a) as commercial speech. In comparative advertising, a certain amount of disparagement is implicit.
(iv) Subject to the exception in (v) infra, an advertisement must not be false, misleading, unfair, or deceptive, irrespective of whether it is extolling the advertised product or criticizing its rival. Misrepresentation and untruth in advertisements is impermissible. An advertisement has necessarily to be honest. It was not only, therefore, required to be accurate and true, but could also not convey an overall misleading message, seen from the standpoint of the customer.
(v) Puffery is the only exception, as puffery, by its very nature, involves exaggeration and embellishment, and an element of untruth is bound to exist in it. The untruth in puffery is permissible only because puffery is inherently not taken seriously by the average consumer. Puffery is not, therefore, to be tested on the anvil of truth. Some elements of hyperbole and untruth are inherent in puffery.
(vi) Mere puffery is not actionable. One can claim one's goods to be better than others. Extolling the virtues of the plaintiff's product as containing natural ingredients, absent in other products, was not disparaging. Extolling one's positive features is permissible.
(vii) However, denigration of a rival's or a competitor's product is completely impermissible. While it is permissible, therefore, to state that the advertised product is superior to the competitor's, it is not permissible to attribute this superiority to some failing, or fault, in the product of the competitor. An advertisement cannot claim that a competitor's goods are bad, undesirable or inferior. The subtle distinction between claiming one's goods to be superior to the others', and the other's goods to be inferior to one's, must be borne in mind.
(viii) Serious statements of facts cannot, however, be untrue. The truthfulness of such assertions or statements of fact is to be strictly tested.
(ix) What matters is the impression that the advertisement or commercial registers in the viewer's mind. The hidden subtext, so long as it is apparent to the average consumer, therefore, matters. The impact could be conveyed by clever advertising or innuendo instead of conveying a direct message.
(x) The reasonable man, from whose point of view the advertisement is to be assessed, is a right-thinking member of the public, and not a member of any par class section. He
(a) is not naïve,
(b) can read between the lines,
(c) can read in implication into the advertisement,
(d) may indulge in some amount of loose thinking,
(e) is not avid for scandal and
(f) does not select a derogatory, or bad, meaning to be attributed to an advertisement where alternative, non-derogatory are also available.
(xi) While examining whether a commercial is disparaging, the Court is required to see
(a) the intent of the commercial,
(b) the manner of the commercial and
(c) the storyline of the commercial, and the message that it seeks to convey. What must be seen is the overall effect of the advertisement, i.e., whether the advertisement is promoting the advertised product or disparaging the rival product. The advertisement must be seen as a whole, not frame by frame. While promoting his product, an advertiser might make an unfavourable comparison, but that may not necessarily affect the storyline or message or have an unfavourable comparison as its overall effect.
(xii) The Court should neither undertake an overelaborate analysis, nor be too literal in its approach.
(xiii) The advertisement was to be viewed as a normal viewer would view it, and not with the specific aim of catching disparagement. Words used in the advertisement are meant to be understood in their natural, general and usual sense and as per common understanding.
(xiv) The time spent showing the product was irrelevant; what was relevant was the context in which the product was shown.
(xv) A plaintiff cannot afford to be hypersensitive, as the choice of the article which a consumer would select would depend on various factors including market forces, economic climate and nature and quality of the product.
(xvi) It is necessary to provide a fair amount of latitude to the advertiser as well.
The Court opined that there is a distinction between an advertisement that disparages and one which seeks to compel the viewer to choose the advertised product. If the capacity to moisturize is one of the selling points of hand washes and if an advertisement extols the moisturizing capability of a particular hand wash as compared to others, that is permissible. So long as other hand washes are not disparaged or rubbished, or reflected as resulting in undesirable results if used, the standards of permissible comparative advertising are met.
The Court observed that on applying these principles in the present case, there is no direct reference, whatsoever, to any property, or characteristic, positive or negative, of Dettol. The primary message that the advertisement seeks to convey, to extol Santoor as superior to other similar products, is that it contains sandalwood, which are known to moisturize the skin. Thus, even if cumulatively seen, no case of denigration, or disparagement, of Dettol is made out as the impugned advertisement does not denigrate either Dettol, or any other hand wash, in fact, it does not comment, either directly or indirectly, on any other hand wash, or its moisturizing or softening ability.
The Court held that no prima facie case was made out, to injunct the broadcasting or display of the impugned advertisement.
[Reckitt Benckiser (India) Pvt. Ltd. v Wipro Enterprises (P) Ltd., 2023 SCC OnLine Del 2958, decided on 18-05-2023]
Advocates who appeared in this case :
Mr. C.M. Lall, Sr. Adv. with Ms. Nancy Roy, Ms. Aastha Kakkar, Mr. Prashant, Ms. Nida Khanam and Ms. Ananya Chug, Advocates for plaintiff
Mr. Akhil Sibal, Sr. Adv. with Mr. Ankur Sangal, Ms. Pragya Mishra, Ms. Trisha Nag, Ms. Sanya Kumar and Ms. Asavari Jain, Advocates for defendants