The emergence of the global pandemic COVID 19 has given an opportunity to various brands to launch and advertise their goods and services, promote the worthiness and value as against their competitors and in order to achieve the same, various companies are coming up with astute techniques to market their products.
Amidst these marketing techniques, several brands have allegedly been mentioning competitors by their names or their products (explicitly or implicitly) portraying why their products are superior to that of their rival brands. This whole marketing tactic is known as Comparative Advertising or Advertising War and this is where the question of infringement of intellectual property rights of a rival brand/competitor surfaces. The broad definition of Comparative Advertising encompasses all marketing techniques that involve a comparison of one or more products or services on any platform viz digital, print, TV, radio etc. Various well-known companies have been known for engaging in these “marketing wars” namely- Samsung & Apple, BMW & Mercedes, Wendy’s & McDonald’s.
Recently, the first IP dispute related to comparative advertisement during the pandemic COVID-19 has been reported in India- Hindustan Unilever Ltd v Reckitt Benckiser (India) Pvt Ltd, (COMIPL/300/2020).
In light of the most effective guideline by the World Health Organization (WHO) to prevent the spread of coronavirus is frequent washing of hands with soaps/liquid soaps, there was a rapid boom in the marketing of several cleaning and sanitizing products.
Subsequently, Hindustan Unilever Ltd (plaintiff) brought Reckitt Benckiser (India) Pvt Ltd (defendant) before the Bombay High Court for disparaging their trademark Lifebuoy used on soap. The dispute arose when the defendants promoted the use of their Dettol liquid soaps wherein they claimed that washing hands with bar soap is ineffective. The disputed advertisement further depicted a red bar soap in the colour, shape, and design identical to the Lifebuoy bar soap pointing to the germs getting collected on it, obviously implying to the novel coronavirus. In the light of this, the plaintiffs sought Rupees 1 crore as damages and a permanent injunction against the defendants for maligning and disparaging their product through their advertisement.
The issue that arises here is whether there is a prima facie case of unlawful comparative advertisement.
The Bombay High Court held that the impugned advertisement of the Defendant for promotion of the Dettol Hand Wash displays soap which is identical and/or deceptively similar to the registered trademark and design of the Plaintiff’s soap ‘Lifebuoy’ and from a mere glance at the advertisement, it is unambiguously understood by the viewers that the displayed soap belongs to the plaintiff. Thereby, the malice on the part of the defendant is made obvious by the fact that the defendant in its advertisement implies to show a soap, like LIFEBUOY, which does not eradicate any germs and is thus ineffective and unreliable during these times. Meanwhile, the defendant company has agreed to suspend the transmission of the advertisement for a month.
On analysis of the present case, Section 30 of the Trademark Act permits an individual to use a registered trademark provided the use is in accordance with honest practices in industrial or commercial matters and does not take unfair advantage of or is detrimental to the distinctive character or repute of the trademark. However, as per the records, the defendants seemed to not just have made a false claim that the soap bars are not as effective as liquid soaps that automatically leads to the deception of the consumer but also affects the consumer behaviour by misleading them to not wanting to use bar soaps during the pandemic. Therefore, the impugned advertisement seems to have a detrimental effect against the plaintiff’s product particularly at a time when the persistence of the novel coronavirus pandemic adds to the disparaging effect that may have on the plaintiff’s product.
The present case concludes as per the plaintiff’s claims that constitute product disparagement. The current situation, where the primary focus should be the maintenance of hygiene, promotional campaigns of competitors should not go against public interest and the principles/guidelines as laid down by law of the land that strives to maintain balance in promoting healthy competition and for better protection of Intellectual Property Rights.