The battle between the brands amidst COVID-19

Author: Shireen Dhar, Associate, ZeusIP Advocate LLP

In the wake of the COVID-19 crisis and numerous medical advisories flowing in, we have come across a commercial disparagement dispute between two FMCG majors. The dispute was taken to the Hon'ble Bombay High Court by the makers of LIFEBUOY soap - Hindustan Unilever Limited ('HUL') against the makers of DETTOL hand wash - Reckitt Benckiser (India) Private Limited ('RB').

HUL had advertised their LIFEBUOY soap to promote the significance of washing hands to maintain self-hygiene. Following HUL's advertisement, RB took out an advertisement which allegedly depicted that its DETTOL hand wash was more effective than regular bar soap (shown as a red bar soap). HUL's stand was that RB had attempted to denigrate HUL's LIFEBUOY soaps and its red bar shape was clearly recognizable in RB's advertisement, compelling HUL to move the court for seeking damages and permanent injunction.

The advertisement in question is no longer available, however, following were the alleged premises of HUL's action (as per publicly available information):-

  • That the advertisement by RB wrongfully depicted a doctor asking patients to keep away from a soap - the shape, color and configuration of which highly resembled LIFEBUOY soaps;
  • Thereby indicating/falsely representing that DETTOL hand washes are more effective than soaps (in particular the ones being sold under the LIFEBUOY brand); and
  • HUL also went ahead and relied on the World Health Organization's guidelines, stating that RB's advertisement went against the same and instead of promoting awareness, they intended to create a prejudice against use of soaps for washing hands.

Based on precedential caselaw concerning comparative advertising, for a claim of disparagement to succeed, HUL will need to satisfactorily prove the following:-

  • that there has been a slandering of goods by RB due to a misleading/false claim regarding HUL's product;
  • such that the claim has misled or caused deception in the minds of consumers, so much so that;
  • the public will perceive HUL's products as being inferior, ultimately affecting consumer behavior, choices and causing business loss to HUL.

RB can possibly defend against HUL's claims by proving that the above requisites have not been met and arguing that puffery (a statement that a tradesman's goods are better than others) is permitted under the honest practices defense of Section 30 of the Trademarks Act, 1999. The said provision permits acts such as claiming that its own products are best, without denigrating competitor's products.

However, before the parties to the suit could delve deeper into claims and arguments, RB unilaterally agreed to take down the advertisement from 22nd March, 2020 to 21st April, 2020 which was followed by a nationwide lockdown and the closure of the courts for non-essential matters. It is to be believed that the said advertisement will remain as off-air until the lockdown (as has been extended by multiple states in India) is lifted. The matter would be likely heard once the courts re-open after the lockdown. It shall certainly be interesting to see how the court perceives this matter further on the next date.