A Division Bench of the Delhi High Court in a recent decision dated 10-12-2013 held that the television commercial which compares the product ‘Pepsodent Germicheck’ with ‘Colgate ST’ is not per se disparaging. However, the print advertisement published by the respondent (Hindustan Unilever Limited or ‘HUL’) involving the same comparison was held as prima facie disparaging of appellant’s (Colgate Palmolive’s - referred to as ‘Colgate’) goodwill and its toothpaste Colgate ST.
Relevant facts
The respondent launched a promotional campaign comprising of a television commercial and an advertisement in print media for its product - Pepsodent Germicheck Super Power. These advertisements conveyed that “Pepsodent Germicheck is 130% better than Colgate Dental Cream Strong Teeth”. In view of this, the appellant/plaintiff instituted a suit against HUL seeking, inter alia, a permanent injunction restraining them from publishing and/or telecasting the controversial advertisements or any other similar advertisements disparaging the goodwill and reputation of Colgate and their products. The advertisements were contended to be detrimental to the distinctive character and reputation of its trademark.
Colgate also filed an application seeking ad-interim injunction against HUL’s advertisements. This application was dismissed by the Single Judge of the Delhi High Court, followed by an application for review, which was also dismissed. Colgate, aggrieved by the dismissal of the review petition and non-grant of the ad-interim injunction, preferred an appeal before the Division Bench.
Advertisement(s) in question
The television commercial showcases a ‘Preventive Cavity Test’ being conducted on two school children accompanied by their mothers. In the beginning of the commercial, the children are shown brushing their teeth with Pepsodent Germicheck and Colgate ST, respectively, the packaging of which products is also clearly visible. The next shot in the commercial depicts a scene four hours later where the dentist is shown conducting a scan of the children’s teeth. The commercial goes on to split the screen into two parts with one side focussing on the Colgate child and the other on the Pepsodent child. The frame shows certain alien looking creatures inside the mouth of the children, which are nothing but Triclosan (an antibacterial and antifungal agent) shown in the form of soldiers. The commercial goes on to display an index of ‘germ attack power’ for both the products, each being displayed at 100%. However, the Triclosan for Pepsodent Germicheck are seen multiplying in the next shot, whereafter the index for Pepsodent Germicheck enhances to 130%, whereas the index for Colgate ST remains stagnant at 100%. The commercial also ends with a statement which effectively means that the new Pepsodent Germicheck gives 130% more germ attack power than Colgate ST.
The advertisement in the print media in question was a full page advertisement, which again depicted a comparison between the impugned products with a bold caption read as - “Pepsodent - Now Better Than Colgate Strong Teeth, Delivers 130% Germ Attack Power”. The lower half of the page is split into two parts, each part showing a child with the respective products in the background. The child on the Pepsodent side is shown smiling with a spoon in his hand and in the process of eating a dessert, while the child on the Colgate side is also shown sitting in front of the dessert, but with a sad face and holding his jaw with a clenched fist.
Decision of the Division Bench
The court ruled that the television commercial cannot be deemed to be per se disparaging Colgate ST. However, the voice over in the background towards the end of the commercial which states that Pepsodent Germicheck has 130% germ attack power in comparison to Colgate is misleading and inaccurate. Hence, the court directed HUL to have the same deleted from the commercial or have it restricted specifically to the product Colgate ST, since it may not be true for other Colgate products. The court also remanded the matter to the Single Judge to decide whether the essential message conveyed by the television commercial, i.e. Pepsodent Germicheck is more effective at combating cavities than Colgate ST, is prima facie, truthful or misleading.
Regarding the print media advertisement, however, the court ruled that the same is prima facie disparaging as it conveys that Colgate is ineffective and lacks the requisite quality to maintain oral hygiene and its usage would result in tooth ailment. Hence, the court restrained HUL from publishing the print media advertisement or any such other advertisement which disparages any product of Colgate.
Principle applicable on the question of disparagement The court reiterated the well settled principle of law relating to disparaging advertisements as laid down in Reckitt & Colman of India Ltd. v. M.P. Ramchandran [see end note 1], Dabur India Ltd. v. Colortek Meghalaya Pvt. Ltd. [see end note 2] and Tata Press Limited v. Mahanagar Telephone Nigam Ltd. [see end note 3]. It held that while a trader can indulge in puffery of his products or services, he cannot denigrate or disparage the products or services of another trader. In other words, while it is permissible for one to compare his goods with those of another and establish superiority of his goods over the other goods, it is not permissible to make statements having adverse implications on the goods of another, while showing them as inferior or of bad quality. Therefore, comparative advertising only to the extent of puffery is permissible, chiefly because an act of puffing does not necessarily refer to making serious and factual statements, amounting to misrepresentation.
Television commercial not per se disparaging
With respect to the television commercial, the court applied the factors laid down in the Dabur case (supra) which were essentially pertaining to identification of the intent, overall effect and manner of advertisement. In other words, it is important to determine whether the advertisement focuses on promotion of its own product or disparagement of a rival product and whether the comparison so made in the advertisement is truthful or it tends to falsely denigrate a rival product. On the aspect of examining the intent and overall effect of the advertisement, the court applied the “Average Viewer Test”, according to which it must be judged whether a consumer or a prospective consumer of average intelligence is likely to be influenced by the factual assertions made in a comparative advertisement or not. This is because an average viewer is least likely to analyse a commercial and may get impacted by a serious factual representation in an advertisement.
In view of the above, the court held that any reasonable person viewing the television commercial involved in the instant case, is likely to comprehend that respondent’s product is 130% effective in combating cavities in comparison to appellant’s product. Without going into the accuracy of the message conveyed by the commercial, the court was of the view that it is not possible to conclude that the advertisement, per se, denigrates or slanders Colgate ST, as the Colgate child cannot be deemed to have been shown in bad light or suffering from any dental ailment. However, the court was of the view that since the parameters applied by HUL in the commercial are scientific, they need to be verified as true and not misleading. The court, therefore, remanded the matter to the Single Judge for adjudication on the truthfulness and accuracy of the scientific statements involved in the commercial. It was, however, clarified that in case the Single Judge concludes that higher concentration of Triclosan does not make Pepsodent Germicheck a superior cavity fighter in comparison with Colgate ST, then such commercial would be liable to be prohibited and that Colgate may be protected against any harm or injury caused to their reputation and goodwill.
Print media advertisement prima facie disparaging
The court propounded that the tests to determine whether the print media advertisement was disparaging or misleading were the same as those applicable in the case of the commercial advertisement. Applying the “Average Viewers Test”, the court was of the view that the probable impression meted out to an average consumer with imperfect recollection who reads the advertisement is that use of Colgate ST would not be as effective as Pepsodent Germicheck and may even result in causing harm and discomfort to the teeth. Hence, the essential message conveyed through the advertisement is that Colgate lacks the requisite quality to maintain oral hygiene and combat tooth decay, thereby resulting in tooth ailment. As laid down in the Dabur case (supra), such act on the part of a trader would amount to defamation of his competitor and his products, which is not permissible. Hence, the print advertisement was prima facie disparaging of Colgate and its products.
[ The author is an Associate, IPR Practice, Lakshmikumaran & Sridharan, New Delhi ]
End Notes:
- 1999 (19) PTC 741
- 167 (2010) DLT 278 (DB)
- (1995) 5 SCC 139