Delhi High Court Refuses Injunction in Dettol v. Santoor Handwash Advertisement Dispute

Summary:

The Delhi High Court recently rejected a plea by Reckitt Benckiser (India) Private Limited, the manufacturer of Dettol handwash, seeking a permanent injunction against the telecast, broadcast, or publication of an advertisement by Wipro Enterprise (Private) Limited promoting Santoor Handwash.[1] The court ruled that the advertisement did not disparage Dettol and did not violate the principles of comparative advertising.

Case Timeline:

Reckitt Benckiser (India) Private Limited filed a suit against Wipro Enterprise (Private) Limited seeking a permanent injunction against the telecast, broadcast, or publication of an advertisement promoting Santoor Handwash.

The advertisement depicted a young girl who washes her hands with Santoor Handwash, resulting in softness. The advertisement compared Santoor Handwash favourably to an “ordinary hand wash” represented by a bottle resembling Dettol Hand Wash.

The suit alleged that the advertisement disparaged Dettol and its product, violating the principles of comparative advertising.

Issue raised:

Whether the advertisement by Wipro Enterprise (Private) Limited disparaged Dettol and its product, warranting an injunction against its telecast, broadcast, or publication.

Appellant’s arguments and respondent’s arguments:

Reckitt Benckiser (India) Private Limited contended that the advertisement indirectly denigrated Dettol by implying that its product was inferior to Santoor Handwash. They argued that the comparison was unfair and misleading to consumers.

Wipro Enterprise (Private) Limited defended the advertisement, stating that it merely highlighted the benefits of Santoor Handwash and did not make any derogatory remarks about Dettol or its product. They argued that comparative advertising is protected under Article 19(1)(a) as commercial speech and a certain amount of disparagement is implicit in such advertising.

Judgment:

The Delhi High Court, presided over by Hon’ble Mr. Justice C. Hari Shankar, refused to grant an injunction against the telecast, broadcast, or publication of the advertisement. The court found that the advertisement did not directly or indirectly refer to Dettol or its product in a disparaging manner. It emphasized that the overall effect of the advertisement should be considered, rather than analysing it frame by frame.

Analysis:

The court outlined the following legal principles regarding comparative advertising:

• Comparative advertising must target the plaintiff’s product either expressly or by necessary implication.
• Indirect representations that sufficiently identify the plaintiff’s product are as good as direct targeting.
• Comparative advertising is protected under Article 19(1)(a) as commercial speech, allowing a certain amount of disparagement.
• However, advertisements must not be false, misleading, unfair, or deceptive, regardless of whether they extol the advertised product or criticize its rival.
• Puffery, involving exaggeration and embellishment, is an exception as it is inherently not taken seriously by the average consumer.
• Extolling the virtues of one’s product, absent in others, is permissible, but denigrating a rival’s product is impermissible.
• Serious statements of facts must be true and tested for truthfulness.
• The overall impression and hidden subtext conveyed to the average consumer matter in determining whether an advertisement is disparaging.
• The court should not undertake an over-elaborate analysis or be too literal in its approach.
• The advertisement should be viewed as a normal viewer would perceive it, with words understood in their natural sense and common understanding.
• The time spent showing the product is irrelevant; the context in which it is shown is crucial.
• A plaintiff should not be hypersensitive, considering various factors that influence consumer choices.
• Fair latitude should be given to advertisers, distinguishing between disparaging and persuasive advertisements.

Applying these principles, the court concluded that the Santoor Handwash advertisement did not directly or indirectly denigrate Dettol. The primary message of the advertisement was to highlight the moisturizing benefits of Santoor Handwash, not to criticize or compare it unfavourably to Dettol. Therefore, no prima facie case was established to justify an injunction against the advertisement’s telecast, broadcast, or publication.

Conclusion:

In conclusion, the Delhi High Court’s judgment highlights the importance of considering the overall effect and impression created by an advertisement when evaluating claims of disparagement. It clarifies the permissible limits of comparative advertising and emphasizes the need for honesty and truthfulness in advertisements, while also acknowledging the role of puffery.

[1]Reckitt Benckiser (India) Pvt. Ltd. v Wipro Enterprises (P) Ltd., 2023 SCC OnLine Del 2958, decided on 18-05-2023.