[Dettol v. Santoor] Comparative Advertisement protected under Art 19(1)(a) as Commercial Speech: Delhi High Court

The Delhi High Court in its judgment dated May 18, 2023, held that mere puffery is not actionable in cases of comparative advertisement. It has to be seen that whether overall effect of the commercial is to promote one’s own product or disparage the rival product – an unfavourable comparison may be made to the extent that it does not affect the storyline or message underlying the commercial, court said.

Court was hearing an application for injunction by Reckitt Benckiser (Dettol) against Wipro Enterprises (Santoor) with respect to a TV commercial where a bottle resembling Dettol hand wash is shown, asserting moisturising nature of the defendant’s product.

Justice C Hari Shankar, while rejecting the application for injunction sought by the plaintiff, observed, “There is a distinction between an advertisement which disparages, and one which seeks to compel the viewer to choose the advertised product. If the capacity to moisturize is one of the selling points of hand washes and if an advertisement extols the moisturizing capability of a particular hand wash as compared to others, that is permissible. So long as other hand washes are not disparaged or rubbished, or reflected as resulting in undesirable results if used, the standards of permissible comparative advertising are met. Every advertisement seeks to promote a particular product over others, as superior. Else, the very raison d’ etre of advertising the product is lost. So long as the advertisement does not slight the rival product, no justifiable cause for pique can be said to exist. The impugned advertisement, in my opinion, does not slight either Dettol, or any other hand wash.”

Reliance was inter-alia placed on Pepsi Co. Ltd v. Hindustan Coca Cola Ltd., Dabur India v. Colortek Meghalaya and tests relating to comparative advertising as postulated by the High Court of Calcutta in Reckitt Colmen v. MP Ramachandran.

Principles underlying Comparative Advertisement

1. Plaintiff cannot claim that his product is being targeted merely because it enjoys a lion’s share of the market.
2. Comparative advertising is permissible under Art. 19(1)(a) as commercial speech and certain amount of disparagement is implicit in such cases.
3. Misrepresentation and untruth in advertisements is impermissible, however, puffery is the only exception as puffery by its very nature involves exaggeration and embellishment where some element of untruth is bound to exist.
4. Mere puffery is not actionable. Extolling one’s positive features is permissible.
5. Denigration of rival product is impermissible – the distinction between claiming one’s own product superior in contrast with denigrating a rival product, must be borne in mind while making a comparative commercial.
6. Statements of facts cannot be untrue.
7. Impression in the eye of a viewer is important – intent of the commercial is to be tested.
8. While examining whether a commercial is disparaging or not, a Court has to see – the intent of the commercial, the manner in which the commercial runs and the story line/message it seeks to convey – essentially, overall effect of commercial.
9. Time spent in showing the plaintiff’s product is relevant – context and intent with which it is shown is the determining factor.
10. Plaintiff cannot afford to be hypersensitive as choice of consumer depends on various market forces.

Brief Background

The plaintiff in the present case was a company manufacturing Dettol.

It was their contention that the defendant company manufacturing Santoor disparaged their product in a TV commercial circulating widely.

A permanent injunction was sought by the plaintiff under Order XXXIX Rule 1 and 2 CPC, 1908.

It was contended that a conjoint representation of several scenes of the advertisement indicated “rubbishing” of the plaintiff’s product as it lacked hand softening/moisturising properties as compared to Santoor, which disparaged their product and fell beyond permissible limits of comparative advertising.

Case Title: Reckitt Benckiser v. Wipro Enterprises