Comparative ads can be made, but can't disparage competitor's products, says Delhi HC quashing HUL's appeal

The Delhi High Court quashed Hindustan Unilever’s appeal in the case concerning ads made for its toilet cleaner ‘Domex’ which allegedly targeted Reckitt Benckiser’s product ‘Harpic’.

The division bench of Justice Vibhu Bakhru and Justice Amit Mahajan quashed the appeal as they found the ads to be ‘untruthful’ and also observed that while comparative advertising is permissible, it cannot disparage the products of the competitors.

“The creativeness of the advertiser which finds expression in puffery and hyperbole, are not restricted even though such exaggerated statements are not true,” the court said.

HUL had filed an appeal in Delhi HC after an order from a single judge bench (in November 2021) had restrained it from publishing the print ad and airing three YouTube videos as part of its planned campaign.

In 2021, HUL ran an ad campaign with the message that its product fights bad odour for a longer time period as compared to Harpic. Three days after the TVC went live, Reckitt had instituted the suit. 

HUL had contended that the ad and the videos ‘truthfully’ showcased that Domex lasted longer as compared to Reckitt’s Harpic, while the latter argued that the claim was disputed and that both- ad and the video were misleading and disparaging.

“It is permissible to advertise that a particular feature or quality of the product is better than that of the competitor. However, this is clearly subject to the condition that the overall advertisement must not be misleading,” the court said.

Moreover, the division bench of justices also observed that any statement or representation made in an advertisement must be accurate and therefore not be misleading in any form as it must be viewed from the target customer’s standpoint.

“Trademarks are source identifiers and therefore, we find no infirmity with the reasoning of the learned Single Judge that the depiction of the bottle of an ordinary toilet cleaner in the impugned videos is likely to be identified as Reckitt’s product Harpic,” the court stated.

Concludingly, the Delhi HC also observed that given the nature of the controversy and the facts, the single judge has not prohibited HUL from broadcasting the impugned videos but merely directed that it remove all references to Reckitt’s product and the bottle representing ordinary toilet cleaners - as the same is identifiable with Harpic.

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