Lifebuoy vs. Dettol: An Old Battle Of Disparagement
Reckitt Benckiser (India) Ltd. vs Hindustan Unilever ltd (2020): Read Complete Judgment Click Here
DETTOL (Plaintiff) vs. LIFEBUOY (Defendant)
There is a long history of a series of disputes arising on the ground of Disparagement between the Plaintiff (Dettol) and Respondent (Lifebuoy). The latest case is about Reckitt Benckiser (Dettol) putting out a denigrating advertisement about Lifebuoy soap during the COVID-19 pandemic. This article will cover all the previous judgments between the Plaintiff and Respondent while focusing on the latest judgment of the Delhi High Court.
Facts:
1. The suit was filed by the plaintiff against the defendant for a permanent injunction to restrain the defendant from airing an advertisement launched by the defendant of its product Lifebuoy Soap on 2nd April 2018, on the ground of disparaging the product Dettol Antiseptic Liquid of the plaintiff. However, the advertisement was not aired after December 2018.
2. Defendant (Lifebuoy) in the past also, on two occasions had made similar unfair comparisons of the plaintiff’s Dettol Antiseptic Liquid with its Lifebuoy Soap, and High Court Delhi and Calcutta had passed orders against the defendant;
3. Plaintiff said that the advertisement is violative of the code of ethics for advertising in India laid down by the Advertising Standards Council of India. Also, he claimed that the use of the defendant’s product Lifebuoy is predominantly for cleansing, and on the contrary, the plaintiff’s product Dettol Antiseptic Liquid is predominantly for germ eradication and is not declared to be used as a cleanser.
4. The plaintiff claimed that the advertisement of the defendant was unfair, prejudicial to the plaintiff, and not with honest intention and lowered the reputation of the plaintiff’s trademark, offending Section 30 of the Trade Marks Act, 1999; Therefore, he prayed for restraining the defendant from showing the advertisement or any version or adoption thereof in any media till the disposal of the suit.
5. Earlier, on a dispute of the same nature (but on a different advertisement) the appeal was made by the defendant against the judgment of the Single Bench of the High Court of Calcutta and was dismissed on merits by the Division Bench of that Court. Further, the appeal preferred by the defendant (Lifebuoy) against the judgment of the Delhi High Court was withdrawn by the defendant (the appeal was made by Lifebuoy of a disparaging advertisement)
In reference to the earlier cases between Plaintiff & Defendant:
1. The High Court of Calcutta in its earlier judgment (2013) held that the advertisement was unfair, prejudicial to Reckitt not with honest intention, and aired at lowering the reputation of the defendant’s trademark, offending Section 30 of the Trade Marks Act, 1999. Therefore, High Court passed an order of injunction restraining the defendant from airing such an advertisement.
2. In the same case Division Bench of High Court Calcutta held that the:-
“…Dettol and Lifebuoy would have two different areas having two different effects. Lifebuoy is a cosmetic whereas Dettol is an antiseptic liquid, Lifebuoy is used during a bath that one would get the effect by rubbing it on the skin. Dettol might claim that one would get good protection in case they use diluted Dettol while bathing. These are two unlike products, the way it was compared was certainly an unfair attempt. Learned Judge restrained the advertisement, we do not find any scope to interfere.”
3. Earlier, the Delhi High Court on the dispute between the same parties noted that without a doubt comparative advertising is beneficial as it increases consumer awareness and therefore, it is permissible not by pulling down the reputation of your competitor by showing its product in debauched light. Denigrating or causing direct harm to one’s product which has attained appreciation in its genre in terms of usage and application would amount to slander, which would also cause great prejudice to the public interest, as the question is not of deciding which product is better, but also of public awareness. Because misleading and disparaging advertisements would not only mellow down the faith of the public but would also result in misleading them.
4. The Court also referred to Procter & Gamble Home Products Private Limited vs Hindustan Unilever Ltd. The important findings of the Delhi High Court were as follows:
(i) Comparative advertising should not unfairly denigrate, attack or discredit another’s product.
(ii) The fundamental right of an advertiser under Article 19(1)(a) has to be balanced with the constitutional right of the competitor under Article 21 of the Constitution of India to the reputation of its goods and the test of proportionality has to be applied;
(iii) the right to protect own reputation is not to be misunderstood as the right to be not spoken against or the right to be not criticized;
(iv) the impact of the advertisement on the consumer has to be seen;
Held:
1. The Delhi High Court noted that what emerges from the aforesaid narrative is that this is the third suit of the same nature by the plaintiff against the defendant before this Court (Previously also there were two cases filed by the Plaintiff on the same dispute in Delhi High Court apart from disputes in Calcutta High Court and before South Africa Authorities). Also, the Court noted that the parties, using their financial prowess, are playing the game of litigation.
2. The defendant, in the advertisement impugned in having compared its Lifebuoy Soap to the plaintiff’s Dettol Antiseptic Liquid (as evident from the use of the words ‘USSE STRONG’), the plaintiff has a prima facie case.
3. The Court also found that a hint of malice was found in the advertisement of the defendant showing the defendant’s Lifebuoy Soap to have excellent germ-killing capability whilst showing an antiseptic liquid in a bad light and as something harmful and completely ineffective. Therefore, it is found to be prima facie disparaging of the product of the plaintiff and found to be in violation of the earlier orders/judgments binding on the defendant, the plaintiff will suffer irreparable loss and injury unless interim relief sought is granted.
4. Further, the balance of convenience is found to be in favour of the plaintiff and against the defendant since the defendant for the last one and a half years is not even airing the advertisement.
Therefore the Court held in the favour of the plaintiff and injuncted the defendant by restraining him till the decision of the suit from airing the subject advertisements.
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