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IN THE HIGH COURT OF DELHI AT NEW DELHI
RAJIV SAHAI ENDLAW, J.
PROCTER & GAMBLE HOME PRODUCTS PRIVATE LIMITED – Plaintiff
Versus
HINDUSTAN UNILEVER LTD. – Defendant
CS(OS) No.459, 463, 507 of 2016 & IA No.11244, 11360, 12275 of 2016
Decided On : 17-02-2017
Comparative Advertisement - Disparagement of Goods - Comparative Advertising - Permissible - Puffery - Not Actionable - Fair Competition - Public Interest - Freedom of Speech and Expression - Reasonable Restrictions - Proportionality - Ordinary Man's Perception - Weightage to Words - Laboratory Test Results - Not Authoritative - Consumer Awareness - Sophistication - Hyper-Sensitive Plaintiff - Market Forces - Consumer Welfare - No Interim Injunction - No Trial - Suits Dismissed.
Fact of the Case:
Three suits for disparagement of goods by TV commercials, one by Hindustan Unilever Ltd. (HUL) against Procter & Gamble Home Products Pvt. Ltd. (P&G) and two by P&G against HUL. The TVCs compared the two brands of shampoo, Clinic Plus (HUL) and Head & Shoulders (P&G), and made claims about their effectiveness against dandruff and hair breakage. HUL argued that P&G's TVCs were disparaging and misleading, while P&G contended that they were fair comparative advertising. HUL also challenged P&G's maintainability of one of the suits on the ground that P&G had previously approached the Advertising Standards Council of India (ASCI) with a complaint about the same TVC and ASCI had rejected the complaint.
Finding of the Court:
The Court held that comparative advertising is permissible as long as it does not unfairly denigrate, attack, or discredit the competitor's product. The Court found that the TVCs in question were not disparaging and were protected by the freedom of speech and expression. The Court also held that the results of laboratory tests, relied on in the advertisements to claim own goods/products to be superior, are not treated by the ordinary man/consumer as authoritative.
Issues: Whether the TV commercials were disparaging and misleading, and whether P&G's suit was maintainable.
Ratio Decidendi: The Court applied the principles of comparative advertising and disparagement of goods to determine whether the TV commercials were actionable. The Court held that the TVCs were not disparaging because they did not unfairly denigrate, attack, or discredit the competitor's product. The Court also held that P&G's suit was maintainable even though P&G had previously approached ASCI with a complaint about the same TVC and ASCI had rejected the complaint.
Final Decision: The Court dismissed all three suits. The Court held that the TV commercials were not disparaging and were protected by the freedom of speech and expression. The Court also held that P&G's suit was maintainable.
1. All the three suits, between the same two parties and filed in quick succession, (may be by way of counter-blast and rejoinder!) claim disparagement of the goods of the plaintiff in the suit, by the defendant in the suit in Television Commercial (TVC) of its goods and seek the relief of injunction and damages.
2. Both the parties to the suit namely Procter & Gamble Home Products Pvt. Ltd. (P&G) and Hindustan Unilever Ltd. (HUL) are manufacturers inter alia of shampoo. These suits are concerned with shampoo sold by each in sachet (as distinct from shampoo sold in bottles or containers) and during the hearing, the counsels were ad idem that sale in sachets constitutes 70% of the total sale of shampoos.
3. These suits concern the ‘Clinic Plus’ and ‘Dove’ brands of HUL and ‘Head & Shoulders Anti-dandruff Shampoo’ (Head & Shoulders) brand of P&G.
4. It is not in dispute that the market price of a sachet of Clinic Plus is Re.1/- and the market price of a sachet of Head & Shoulders is Rs.3/-.
5. The advertisement impugned in each of the suit indisputably compares the two products and though does not name the product of the other but, besides showing the sachet of the advertiser’s own product, shows sachet of the other’s product. The counsels did not dispute such deceptive similarity, making the viewers aware of the identity of the product with which the advertiser’s shampoo is being compared.
6. The counsels also did not dispute that Head & Shoulders is the “leading anti-dandruff shampoo” and that Clinic Plus also has an anti-dandruff shampoo but which is sold in bottles/containers—not in sachets.
7. The TVC in Hindi language of Clinic Plus impugned in CS(OS) No.459/2016 has the female protagonist thereof stating “Mummy se mili hai ek sansani news. Clinic Plus mazbooti de leading anti-dandruff shampoo se behtar. Teen rupaye wale anti-dandruff shampoo se baal zyada tootte hain. Clinic Plus baalon ko deta hai teen guna zyada mazbooti…bas ek rupaye mein. Mazboot baal bas ek rupaye mein”.
The TVC, in disclaimer at the bottom thereof informs the claim therein to be based on laboratory test.
8. CS(OS) No.463/2016 impugns five TVCs of P&G, also in Hindi language, of its Head & Shoulders shampoo. The female protagonist in the first TVC states “Kya aapka shampoo dandruff pe asardaar hai? Aiye dekhte hain.. Nahi….Kyunki aapka ek rupaye waala shampoo dandruff nahin nikalta, ek, do, teen washes main bhi… Head & Shoulders use nikalta hain, sirf ek wash main. Apnaye sahi shampoo. Head & Shoulders”. The second TVC claims with respect to Head & Shoulders “Sirf naya nahi, sirf behtar hi nahi, yeh hain best ever Head & Shoulders. Ek rupaye wala shampoo, dandruff nahi hatata, teen wash main bhi. Head & Shoulders sirf ek wash main use mita de. Naya Head & Shoulders. Dandruff nahi chalega”. The third TVC has the Film Star Ranveer Singh telling another man in the TVC “Oh Dude, Dandruff nahi chalega. Best ever Head & Shoulders. Teen ke mukable, ek hi wash main zyaada dandruff hataye. Kyunki dandruff nahi chalega”. The fourth TVC inter alia has the Film Star Ranveer Singh saying “All you majnus, listen up. Laila ko patana hain to dandruff nahin chalega. Chalega to bas best ever Head & Shoulders. Teen ke mukable ek hi wash me zyaada dandruff mitaye. Best ever Head & Shoulders”. The fifth TVC, inter alia has a woman telling a man “something between the two of us. Do you also feel something something..aiyeo dandruff. No need for dandruff between us. Presenting the best ever Head & Shoulders. When compared to three washes, with just one wash removes more dandruff. Bilkul nahi chalega dandruff”. The suit also impugns two print advertisements using identical language.
9. The TVC in Bengali language of HUL impugned in CS(OS) No.507/2016 has voice over saying “do you feel that anti-dandruff shampoos can damage your hair. Dove Dandruff Care is different. With powerful ZPTO and 1/4th moisturizing milk. It not only removes dandruff. It also gives amazing damage re
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