Introduction
Given the competition in consumer products space, various brands resort to comparative advertising to attract consumers. These brands must however adhere to the age-old adage of “your right to swing your arms ends just where the other man’s nose begins”. Brands may make exaggerated statements in their advertisements that may not be entirely true and dabble in puffery. While this is permissible under law, denigration of rival’s product while puffing up one’s own product is entirely impermissible and liable for civil action for disparagement.
In this article, we discuss the decision of the Delhi High Court in Reckitt Benckiser (India) Pvt. Ltd. & Anr. v. Wipro Enterprises (P) Ltd. (Dettol-Santoor Case) dealing with the grey area between puffery in advertising and misleading claims to avoid fines or a lawsuit.
Background
In Dettol-Santoor Case, the character in the advertisement is shown to be amazed at how soft her mother’s hands have become after using Santoor Hand Wash. The mother is depicted removing a plastic bottle labeled “ordinary hand wash.” The bottle is designed to resemble the Dettol Hand Wash, suggesting that while using Dettol Hand Wash, her hands were not soft. However, after using Santoor Hand Wash, her hands have become soft. Thereafter, the mother is heard using the word “ordinary” with reference to the bottle being portrayed as Dettol Hand Wash. Lastly, a voiceover conveys that unlike ordinary handwash (being Dettol Hand Wash), Santoor Hand Wash has hand softening properties enriched with sandalwood.
The manufacturer of Dettol Hand Wash approached the Delhi High Court seeking a stay on Santoor’s advertisement. It was contended that that the advertisement disparages its product, while the manufacturers of Santoor Hand Wash argued that the advertisement merely extols Santoor Hand Wash and that the comparison between the two products is well within the permissible limits of comparative advertisement.
Delhi High Court’s view
The Delhi High Court clarified that an advertisement may make comparison between competing products, but denigrating rival’s product is not permissible. It is acceptable to claim superiority for the advertised product, but this cannot be on account of some fault in the competitor’s product. In this case, the Delhi High Court found that the advertisement praised Santoor Hand Wash without disparaging Dettol Hand Wash.
The Delhi High Court noted that in order to attract disparagement, there must be a positive denigration of the rival’s product, which was not present in Santoor’s advertisement. Therefore, the Delhi High Court declined to stop the advertisement’s broadcast.
To clarify the difference between puffery and disparagement in advertising, the Delhi High Court provided the following guiding principles:
(i) When an advertisement doesn’t directly or indirectly mention the rival product, the rival cannot claim it was targeted towards it just because it has a large market share.
(ii) The alleged advertisement must not be false, misleading, unfair or deceptive, irrespective of whether it is hyping the advertised product or criticizing its rival.
(iii) Puffery is an exception. In fact, some elements of hyperbole and untruthfulness inherent in puffery are permissible.
(iv) Denigration of rival’s product i.e., pointing out failing or fault of the rival’s product is completely impermissible.
(v) Serious statements of fact must be true and will be strictly tested for truthfulness.
(vi) The time period for which the rival’s product is on screen is irrelevant.
(vii) The underlying test is the impression that advertisement registers in a reasonable person’s mind. Accordingly, what is impermissible directly is impressible indirectly.
(viii) Additionally, the advertisement has to be viewed as a reasonable audience would view it, not with the specific aim of catching disparagement.
(ix) While considering whether disparagement has been caused, the court has to consider:
a. The intent of the advertisement;
b. Manner of the advertisement; and
c. Story line of the commercial.
(x) Apart from the above, a fair amount of latitude is necessary to the advertiser, and one cannot be hypersensitive regarding comparative advertisement.
On the basis of these principles, the Delhi High Court concluded that Santoor’s advertisement does not point out any fault or failing of Dettol Hand Wash. Further, it is not disputed by Dettol Hand Wash that it does not possess properties of sandalwood. Accordingly, absent such positive denigration of Dettol Hand Wash and mere puffery of its own product, the manufacturer of Santoor Hand Wash was not held to be liable for disparagement.
Our thoughts
The Dettol-Santoor Case serves as a strong example that comparative advertising featuring a rival product, is not punishable. It clarifies that the parameters for disparagement are broad and mere puffery is not disparagement. In today’s age of advanced technology and social media, brands must create captivating content to attract viewers amidst a plethora of product choices. With fierce competition, some brands resort to comparative advertisements, but in a cautious and restrained manner to avoid legal trouble. In our view, the Dettol-Santoor Case should embolden advertisers and PR agencies to explore the potential of comparative advertising further.
The Delhi High Court’s decision reinforces the view that rival traders indulging in puffery, without denigrating each other’s product is permissible. Brands with substantial resources may initiate litigation to injunct such advertisements, but this ruling reaffirms the scope for creative and assertive advertising. The Delhi High Court’s careful consideration of past precedents further supports the message that comparative advertising is lawful when executed without disparagement.
Authors: Souvik Ganguly, Altamash Qureshi and Richa Phulwani
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