May not affect brand’s reputation, lawyers on Delhi HC’s judgment calling out HUL’s disparaging ad on Harpic

Hindustan Unilever Limiter

Lawyers have opined that while the Delhi High Court has upheld the correct position of law by calling out Hindustan Unilever Ltd (HUL) for its advertisement for it brand Domex disparaging its competitor brand Harpic, it may not affect Domex’s reputation as a brand.

What was the judgment about?

In 2021, HUL came out with an advertisement which claimed that its toilet cleaning product Domex was superior to its competitor Harpic, a toilet cleaning product owned by Reckitt.

The advertisement further claimed that Domex was better at getting rid of bad odour from the toilet as it owned a patent to a technology that can do so.

A single judge of the Delhi High Court in 2021 held that, prima facie, the advertisement sought to denigrate and malign Harpic’s bottle as an ordinary toilet cleaner. The court noted the shape of the bottle was a registered trademark of Reckitt and, accordingly, restrained HUL from broadcasting the advertisement in any form until HUL removed all reference to Reckitt’s product.

HUL appealed against the order of the single judge before a division bench of the high court.

On April 13, a two-judge bench of the Delhi High Court confirmed the single judge’s order and noted that the impugned advertisement was disparaging to Reckitt’s product as it mentioned Harpic in particular and claimed that Domex fights bad odour for a longer period. Apart from that, it depicted the toilet bowl cleaned with Domex emanating fragrance while that cleaned with Harpic emanating a foul smell.

The judgment noted that while an advertiser can indulge in many tactics to show their product in good light, the advertiser cannot claim that its competitor’s product is bad and its use would be detrimental to customers.

The court further held the advertisement is untruthful to the extent that it reflects that the toilet cleaned by its product would emanate fragrance while the one cleaned by its rival would leave a foul smell.

‘May not impact the brand value’

Nishidh Patel, intellectual law partner at Singhania and Co, said, “While there may be a commercial loss to Domex of the expenses incurred on creating the advertisement, from the mass user perspective, I doubt if there will be any major impact on the brand.”

He noted that most people would not be aware of the court ruling and, secondly, the judgement does not hold anything bad about Domex.  He said, “The judgement holds that the advertisement released by Domex was disparaging to Harpic and, hence, needs be taken down.”

‘Correct in law but no far-reaching consequences’

Anushkaa Arora, principal and founder, ABA Law Offices, noted that the judgment lays down the correct position of law in India by holding that while comparative advertising is permissible, it cannot disparage competitors’ products. She said, “I don’t think there are far overreaching effects over this judgment in terms to market value or the reputation of the brand. However, it may have an effect on sales of the product Domex vis-à-vis Harpic and a game lost qua market strategies.”

‘Reaffirms law on disparagement’

Subhash Bhutoria, partner at DSK Legal, said, “This judgment reaffirms the law on disparagement as laid down by the Supreme Court as well as various high courts, which restricts misleading ads. Domex’s advertisement is found to be misleading as it showed Harpic in a bad light and hence the single judge had restricted the print media ad and had directed HUL to remove Harpic’s reference from the TVC (television commercial).”

He noted that the judgment is important as it clarifies the technical superiority of a product can be proved only after trial.

‘Ensures probity in commercial advertising’

T. Sundar Ramanathan, partner at Sarvada Legal, said, “The high court by reiterating that it is not open for an advertiser to claim that the product of its competitor is bad has ensured probity in commercial advertising.”