Comparative Advertising — Disparagement — Injunction
Order XXXIX Rules 1 & 2 CPC
While comparative advertising is permissible, an advertiser cannot denigrate or disparage the goods of a rival — Puffery is allowed; slander of a competitor’s product is impermissible — Where prima facie disparagement is shown, injunction can be granted.
[Paras 17–21, 29]
Advertisement — Test of Disparagement
Intent, manner, storyline and overall effect
Advertisement must be viewed as a whole — Court must examine intent, storyline, overall effect and message conveyed to an average consumer — Minute dissection is impermissible.
[Paras 17–21, 22]
Commercial Speech — Article 19(1)(a)
Advertising is protected commercial speech — Protection does not extend to false, misleading, unfair or deceptive advertising — Untruthful disparagement is not protected.
[Paras 17–21]
Trademark — Trade Dress — Bottle Shape
Deceptive similarity
Depiction of a bottle deceptively similar to the plaintiff’s registered trade dress, coupled with portrayal of such product as inferior or “ordinary”, prima facie amounts to denigration and infringement.
[Paras 25–27, 29]
Interim Injunction — Balance of Convenience
Where advertisements prima facie denigrate a rival’s product, and disputed questions of technical superiority require trial, balance of convenience lies in restraining dissemination pending adjudication.
[Paras 26, 29]
Comparative Advertising — Permissible Limits
A trader may state that his product is better, but cannot say that the competitor’s product is bad, inferior, or undesirable — Truthful comparison is permissible; defamatory comparison is not.
[Paras 17–21]
II. ANALYSIS OF LAW
A. Governing Principles on Comparative Advertising
The Court undertakes an extensive survey of precedent, reaffirming settled principles:
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Puffery is permissible — claiming superiority of one’s product.
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Disparagement is impermissible — portraying a rival product as inferior, ineffective, or undesirable.
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Truthful disparagement may be arguable, but untruthful disparagement is barred.
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Advertisement must be assessed from the perspective of an average consumer, not a hypersensitive trader.
These principles are drawn from Colgate, Dabur, Pepsi, and allied Division Bench rulings (Paras 17–21).
B. Test Applied by the Court
The Court applies the following four-fold test:
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Intent of the advertisement
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Storyline and message
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Overall effect
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Manner of depiction
A holistic view, rather than frame-by-frame analysis, is adopted (Paras 17–22).
C. Commercial Speech and Its Limits
While acknowledging advertising as commercial speech protected under Article 19(1)(a), the Court reiterates that such protection does not extend to advertising which is:
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false,
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misleading,
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unfair,
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deceptive, or
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disparaging of rival goods (Paras 17–21).
D. Trade Dress and Bottle Shape
A crucial legal finding is that:
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Plaintiff’s bottle shape is a registered trademark.
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Depiction of a deceptively similar bottle as an “ordinary toilet cleaner” incapable of removing odour/stains prima facie denigrates the plaintiff’s product.
This takes the impugned advertisements beyond permissible comparative advertising (Paras 25–27).
E. Patent Defence — Disputed Questions
Defendant’s reliance on patented technology was held to raise disputed questions of fact:
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Technical superiority cannot be assumed at the interim stage.
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Burden lies on the defendant to prove such superiority at trial (Para 26).
III. ANALYSIS OF FACTS (AS FOUND)
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Plaintiff Reckitt Benckiser India Private Limited is proprietor of the HARPIC trademark and registered bottle shape.
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Defendant Hindustan Unilever Limited launched five advertisements promoting DOMEX.
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One TVC was held not prima facie disparaging (Para 22).
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Four advertisements (second, third, fourth, fifth) were found to:
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depict a bottle deceptively similar to HARPIC,
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label it as an “ordinary toilet cleaner”,
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suggest inferiority and inefficacy (Paras 25–29).
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IV. FINAL HOLDING / OPERATIVE DIRECTIONS
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TVC: No prima facie disparagement — no injunction.
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Four advertisements (2nd, 3rd, 4th, 5th):
Restrained from publication until all references to:-
HARPIC, or
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deceptively similar bottle/trade dress
are removed.
-
-
Balance of convenience held in favour of plaintiff.
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Application disposed of accordingly.
[Paras 29–30]
Ratio (Concise)
Comparative advertising is permissible only so long as it promotes one’s own product without portraying the rival’s product as inferior; depiction of a deceptively similar trade dress as “ordinary” and ineffective constitutes actionable disparagement warranting injunction.
