INTRODUCTION
Intellectual Property Rights are meant to protect the products of mind arising out of creativity
and innovation of a creator or developer. Trademark is the branch of IPR that allows the
businesses to stand out by creating a distinct reputation in the minds of the consumers. That
clear cut repute let the customers to recognize their favorite brand and go specifically for the
products and services of their preferable brand. This perceptible image empowers the
businesses to gain market share meanwhile enabling the customers to identify and pick the
product of their own choice without confusing it with the product of the competitor.
The whole hubbub behind owning a Trademark is to establish a well-defined, unmistakable
reputation in the eyes of the customers. Disparaging is the attack by a competitor on that very
reputation and the goodwill of the business by targeting the product or services of the brand
by the means of Advertisement. Advertisement nowadays are the best way of creating an
image and making the brand known to the public at large hence, can be maliciously used as a
weapon to deteriorate the likeness of the competitor’s product or service.
COMPETITIVE ADVERTISEMENT- PUFFERY AND DISPARAGEMENT
When any matter is disseminated by a competitor with an intent to cast doubts in the minds of
the viewers (potential customers) regarding the existence or quality of the product or service
of another, it is known as Disparaging. It is the practice of positively promoting one’s own
product by derogating the brand and product of another. Now, Disparaging should not be
confused with Puffery. Competitive Advertisement is very much welcomed by the laws of
Trademark but only in the form of puffery and not disparaging.
Companies generally use Competitive Analysis to compare and present that their product is
street ahead than that of their competitors’ without specifically mentioning the name of that
particular competitor. For understanding the thin line between Puffery and Disparaging, let’s
look into this famous case between Famous-German soap brand “Sebamed” and Indian
FMCG giant- Hindustan Unilever. Sebamed targeted the consumer favorite soaps like
Dove, Pears and Lux. Sebamed mentioned that Ph level of their soaps are perfectly suitable
for human skin whereas the Ph level of these other soaps are harmful on fragile skin of
humans. On top of that, it compared ph levels of all other soaps to the ph level of a cloth
washing soap bar; Rin. They straight away targeted Lux by titling their soap campaign,
“Filmstars Ki Nahi, Science Ki Suno” when everybody knew that Lux has always been
promoting and advertising their soaps by the means of Bollywood celebrities. HUL dragged
Sebamed to the court, where it was held that Sebamed can continue their comparative
analysis as long as their claims stand true to science. But, comparative analysis turned into
disparaging for the Rin Bar when the company compared other soaps with it hence, court
asked Sebamed to not to use the comparison with Rin any more. How thin is this line
between puffery and disparaging that the companies can’t even comprehend when it has been
crossed and started a legal battle.
DELHI HIGH COURT ON VIEWERS, DISPARAGING AND PUFFERY
Reckitt Benckiser (India) Pvt. Limited and Another vs. Wipro Enterprises (P) Limited;
2023 SCC OnLine Del 2958, is the first case in India that demands for the explanation to the
term, Viewer. Delhi High Court mentioned two types of viewers, one type being of Normal
Viewer whereas other type points out Reasonable Men. According to the court, a "Normal
viewer" would interpret the commercial "in their natural, general, and typical sense as per
common understanding" with the determination to point out disparagement. The facts
presented has to be true as a normal viewer may ignore puffery but will pay attention to the
virtual representation of facts. A reasonable viewer, then again, is not that simple and
uncritical. He can construe things and will have opinions in their context. He can analyse and
surmise innuendo into the advertisement, may involve himself in some loose thinking. He is
not ardent on scandal and does not select and assign a derogatory meaning to the
advertisement when alternatives, non-derogatory meanings are also applicable. These
remarks provide the impression that the second type of viewer is more clever and vigilant
than the former.
This is the case of two rival products, Dettol Hand Wash and Santoor Hand Wash which
revolves around an advertisement by the defendant. The advertisement portrays a little girl
(named, Priya by the judge) and her mother; who after washing her hands with Santoor plays
with her daughter and the latter couldn’t seem to get enough of her mother’s soft hands. After
fondling Priya’s cheeks, her mother went on and pull out from the shelf the bottle of a hand
wash, named as Ordinary Hand Wash. Cause of action arose as and when the shape of the
bottle removed was exactly the shape of plaintiff’s Dettol Hand Wash. Besides, it was
honestly accepted by the defendant’s counsel that the bottle deliberated to be shown was as a
matter of fact is Plaintiff’s Dettol bottle.
Plaintiff alleged that the advertisement is disparaging towards their Dettol Hand Wash
whereas Defendant claimed that it does not disparage Dettol in any manner but just eulogise
Santoor. Learned Counsel of defendant put forward that the permissible limits of Competitive
Advertisement has been respected and the plaintiff is just being hypersensitive.
According to the law, Puffery is permissible and is not meant to be taken sternly. Little bit of
disparagement is inferred in Puffery. Comparative advertisement is permitted by Article
19(1)(a) of Indian Constitution as commercial speech in which certain amount of
disparagement is implicit but the facts portrayed should be true and fair Competitor can
claim that his product is superior but cannot showcase that other’s goods are bad, ineffective
and inferior. Applying the aforesaid principles in this case, the court held that the
advertisement is trying to show its viewers that the hands of Priya’s mothers are soft because
she has used Santoor. Paramount intentions of the defendant is to extol Santoor representing
it as superior and better for it contains Sandal which moisturises skin. To extract from it
anything derogatory or disparaging, will be, too much reading into the advertisement.
CONCLUSION
If Comparative Advertisement leads to derogating someone else’s product than it will not
only lead to Trademark Infringement but will also result in Unfair Trade Practice by the way
of deceiving customers. The courts in many cases, including in the case of Dabur India Ltd.
Vs. Wipro Limited, Bangalore (2006 SCC OnLine Del 391 : (2006) 129 DLT 265 : (2006)
32 PTC 677 : (2006) 3 CCC 125) have held that Disparagement of a product should either
amount to defamation or should border on defamation.
There is a difference between an advertisement that disparages a product and one that tries to
persuade the audience to buy the publicised product. It is justifiable if a hand wash's ability
to moisturise is one of its selling advantages and if a commercial highlights that feature in
comparison to others, than that can be accepted. The criteria for acceptable comparison
advertising are met as long as rival hand washes are not disregarded, derogated, derided, or
shown to produce unpleasant results when utilised. Every advertisement aims to elevate one
product over others and present it as superior. Otherwise, the fundamental point of
publicising the goods stand defeated.
