Harpic vs. Domex: Who’s better

Advertisements form an important factor of the marketing strategy of an organization. It is common that there is competition in the market and hence, certain firms tend to disparage the goodwill of another company. In common parlance, comparative advertisement means advertisement of a particular product by comparing with the competitor’s product for showing why it is superior.
Harpic_caseIn the recent toilet cleaner advertisement, Hindustan Unilever’s (HUL’s) Domex directly named Reckitt’s Harpic, evidently claiming former’s superiority on the specific dealing with a situation of funk. The commercial is shot in a supermarket set featuring actress Divyanka Tripathi and Revathy, wherein the consumer is forced to question her toilet cleaner purchase when her son questions her choice of Harpic when she picks it up.

HUL stated that its new “Domex Fresh Guard toilet disinfectant cleaner” is composed of surface-modifying particles that tend to leave a protective layer on the toilet surface to avoid the accumulation of bacteria, water and stains. In the European market, Domex is leading in certain hygienic and cleaning products. However, in the Indian market, the consumers tend to trust Harpic more as it has more than 70% share whereas Domex only owns 7% share in the market.

Justifying the improper advertisement, the Executive Director; VP, Home Care of HUL (South Asia), Ms. Prabha Narasimhan stated that their communication was aimed at giving consumers the evidence to make informed decisions determined by their own technology and research.

Comparative Advertising

Comparative Advertisements and Product disparagement are sensitive subjects to the manufacturers and producers of goods and services. The former is a strategy used by companies to represent their products as superior in comparison to the competitor. When the comparison is misleading and/or derogatory, it is termed as the latter. With the increase in the importance of advertising, there is limited vigilance on the marketing strategies. Such an advertising is permissible if it meets certain basic conditions as provided under the thumb rules by the Advertising Standard Council of India in its Code for Self Regulation of Advertising Content. For instance, as long as the advertisements are evidently “in the interests of vigorous competition and public enlightenment” and there is utmost clarity, there is likely to be little or no problem. On the other hand, Section 29(8) of the Trademarks Act, 1999 lists down certain activities that constitute infringement. The provision states that infringement takes place if the advertisement in question:

  1. Takes unfair advantage of and is contrary to honest practices in industrial or commercial matters.
  2. Is detrimental to its distinctive character.
  3. Is against the reputation of the trademark.

Thus, the most important factor is that the comparison between the products should not mislead the consumers about the product that is advertised or the one with which it is compared. The advertisement should not attack or discredit the products.

Background of the case

The case was filed by Reckitt Benckiser, manufacturer of Harpic before the hon’ble Delhi High Court, against HUL for injunction under Order 39 Rules 1 and 2 of the Civil Procedure Code to restrict the HUL from disintegrating the reputation of the trademark ‘HARPIC’ and from broadcasting the impugned advertisements. One advertisement depicted a child questioning his mother about the choice of HARPIC whereas the other advertisement directly made a comparison between the two products which was allegedly defamatory. The other advertisements used an identifiable Harpic bottle and the depiction that it is just an ‘ordinary toilet cleaner’. HUL herein clearly denied any reference to the plaintiff’s product.

Legal Provisions Involved

Section 30(1) of the Act justifies comparative advertising, authorizing the use of a registered trademark for the purpose of identifying the goods or services of the competitor provided that the use must only be according to honest and fair-trade practices with bona fide intent to take the advantage of reputation.

Further, Section 30(2)(d) provides for nominative fair use by third parties not qualifying trademark infringement if the use does not cause any confusion in the minds of the consumers. Simply put, nominative fair use is used as a defense in cases of trademark infringement wherein the brands make use of other firm’s goods or services.

The Madras High Court in Consim Info Pvt Ltd vs. Google India Pvt Ltd. held that certain requisites must be met to pass for the defense of ‘nominative fair use’ as provided below:

  1. The product in question must be difficult to identify without the use of the trademark.
  2. Only as much of the marks as is reasonably necessary to identify the product should be engaged in and
  3. The user must do nothing that suggests endorsement by the trademark owner when using the mark.

Findings

The Court relied on certain judgments and reiterated that in comparative advertisements, one must not make misleading contentions or claims that may defame the goods of the competitor and make itself superior to the competitor. However, the Court also stated that within this gray area, the intention of the firm making the advertisement must be assessed to make a viable decision.

The Hon’ble Court while assessing the first advertisement clearly states that the intention of the advertisement was not to disintegrate the plaintiff’s product. It was further stated that under Article 19 of the Constitution, the defendant has the right to commercial speech and the plaintiff must not be hypersensitive. However, in the other advertisements, the Court stated that the defendant disparaged the reputation of the plaintiff because the bottle was deceptively similar to the HARPIC bottle.

Analysis

The Court adopted an approach to pronounce a win-win judgment for both the parties. In the advertisement, wherein a boy questioned the choice of his mother, the court stated that it was mere comparison without any intention to disparage the plaintiff’s product. However, the advertisement is now taken down by the defendant. In the author’s opinion, the advertisement clearly disparages the product’s reputation. Questioning one’s choice in one way or the other implies that the product is not that effective. If Domex intended to depict that it has launched a new and advanced product, the marketing strategy and content of advertisement could have been different. Therefore, a flaw in the judgment can be identified.

Conclusion

While comparative advertising is not unlawful in and of itself, advertisers should ensure that the foundation for comparison is fair and factual and are not chosen to provide themselves an unfair advantage, as we wait for the final resolution of this ongoing issue. In such comparable advertising, other marketers must not be unfairly disparaged or ignored. Although hyped-up advertising may be permissible, it cannot transgress the gray areas of permissible assertion, and if it does so, the advertiser must have some reasonable factual basis for the assertion made.

The Court in many cases also stated that the consumers have the right to free flow of the information and hence, the marketeers must do the same to aid consumers in making informed decisions.

Author: Tanya Saraswat – a student of  Institute of Management Studies (NMIMS), in case of any queries please contact/write back to us via email chhavi@khuranaandkhurana.com. or at Khurana & Khurana, Advocates and IP Attorney.

Leave a Reply

Archives

  • August 2022
  • July 2022
  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021
  • October 2021
  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • September 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010