The Delhi High Court on Thursday restrained Kwick Living, which sells products under the Beco brand, from continuing its 'War on What’s Hidden' advertising campaign targeting Hindustan Unilever Limited’s Surf Excel and Vim products. [HUL v. Kwick Living]
Justice Anup Jairam Bhambhani held that while comparative advertising may place a rival’s product in an unfavourable light, it crosses the legal line when the overall message is false, misleading or deceptive. The Court found that Beco had prima facie failed to establish the truth of the message conveyed by its campaign.
“Just because a comparative advertisement is derisive or denigrating or unflattering of the competitor’s product or service does not necessarily imply that it amounts to disparagement in law.”
The Court explained that truthful but unfavourable comparison cannot become actionable merely because the competitor considers it disparaging. For a comparative advertisement to amount to disparagement in law, it must involve falsehood, misrepresentation or deception that causes injury to the competitor’s intellectual property or reputation, it said.
The ruling came on an interim injunction application filed by HUL against Kwick Living over advertisements concerning Surf Excel and Vim. The campaign claimed that the products contained Linear Alkylbenzene Sulfonate (LAS) and Benzisothiazolinone (BIT), substances which could cause skin irritation and allergic reactions. It also urged consumers to “Switch to BECO”. HUL alleged commercial disparagement, trademark and trade dress infringement, copyright infringement, passing off and unfair competition.
Beco maintained that the products did contain LAS and BIT and relied on scientific and regulatory material concerning the potential effects of those ingredients.
The Court said it could not, at the interim stage, analyse competing laboratory reports and scientific material or determine the correctness of the methodologies used by the parties. That exercise would require expert evidence at trial, it said.
However, Justice Bhambhani held that advertisements cannot be tested by breaking individual statements apart and examining whether each statement is technically correct. Courts must consider the message conveyed by the advertisement as a whole to an average consumer.
“A particular element of an advertisement may, when viewed in isolation, be accurate or truthful, but when juxtaposed with its other elements, the advertisement viewed as a whole may convey a false and/or misleading and/or deceptive message to an average consumer.”
The Court found that references to complex chemical names, concentrations and percentages gave consumers a sense of certainty that HUL’s products were risky to use. The simultaneous exhortation to “Switch to BECO”, coupled with claims that Beco products were “hypoallergenic”, “baby safe” and “pet safe”, also revealed the commercial character of the campaign.
Kwick Living was directed to pull down, remove and recall all advertisements containing the offending statements across every format and medium within one week.
HUL was represented by Senior Advocates Amit Sibal and Rajiv Nayar along with Advocates Saikrishna Rajagopal, Sidharth Chopra, Nitin Sharma, Sneha Jain, Vivek Ayyagari, Abhinav Bhalla, Saksham Dhingra and Smriti Nair from Saikrishna & Associates.
Kwick Living was represented by Senior Advocate Chander M Lall along with Advocates Shwetasree Majumder, Prithvi Singh, Jahnvi Chadha, Rohan Krishna Seth, Devyani Nath, Krtin Bhasin, Ritwik Marwaha, Vanshika Singh and Annanya Mehan from Fidus Law Chambers.
[Read Order]