Hindustan Unilever sought an interim injunction against Cavincare Private Limited to restrain it from telecasting or, in any other manner, causing the publication of an advertisement that allegedly caused the “disparagement” of a Hindustan Unilever product.
Brief facts of the case
Associate
Lex ORBIS IP Practice
The impugned advertisement showcased a Cavincare shampoo, which is sold under the trademark Chik, describing it as more effective than any other “pearly blue colour” shampoo. Hindustan Unilever was concerned as its well-known Clinic Plus shampoo is of the same colour.
Hindustan Unilever alleged that the advertisement, which was telecast by Cavincare or its agents, disparages Clinic Plus. Hindustan Unilever submitted that with effect from 1 May 2010 it had launched a campaign to sell sachets intended to be used for a single hair wash, with 20% extra shampoo at the same price as before.
Hindustan Unilever contended that Cavincare released its advertisement on 6 May 2010 in order to attack Clinic Plus. The advertisement showed all other shampoos as less effective as they contained a lesser quantity when compared with Cavincare’s Chik 7.5ml sachets. Hindustan Unilever argued that the message conveyed was that one sachet of Clinic Plus was not sufficient for a consumer to have a complete hair wash.
Of quality and quantity
Using reports produced by its research and development (R&D) department, Hindustan Unilever established that a sachet of Clinic Plus, which had less shampoo than a Chik sachet, was of better quality than Chik as its PH factor, viscosity, etc., were superior. While Hindustan Unilever admitted that the impugned advertisement did not directly allude to their product, they argued that in mentioning the colour and price of their shampoo, Cavincare was being disparaging.
Refuting the charge of disparagement, Cavincare argued that Hindustan Unilever is not the only manufacturer of blue coloured shampoo and cannot claim monopoly over the pearly blue colour.
Regarding the issue of greater quantity, Hindustan Unilever referred to a report prepared by its R&D department, by way of physiochemical analysis, and certified that even though it was offering a lesser quantity of shampoo in its sachets sold prior to 1 May 2010 its shampoo was superior when compared to the defendant’s shampoo. The analysis was conducted on samples obtained prior to 1 May 2010. The plaintiff submitted that the defendant’s Chik shampoo was launched on 1 May 2010 and the report which is dated 5 May 2010 was inaccurate as at that stage, the sachets carried 7.8ml of shampoo and not 6.5ml.
Hindustan Unilever relied on Dabur India Ltd v M/s Colortek Meghalaya Pvt Ltd and Dabur India Limited v Colgate Palmolive India Ltd in support of its submissions.
After hearing both parties, the high court directed the defendant to file an affidavit. The defendant filed an affidavit dated 13 July 2010 stating that until December 2008 their `1 sachets contained 8ml of shampoo. However, after that date the quantity had been reduced to 7.5ml.
Before the high court dismissed Hindustan Unilever’s interim injunction application, it explained the parameters of “disparagement”, which it said is often described as trade libel or even slander of goods. Courts have also included venial puffing and commercially honest denigration within the ambit of generic disparagement. The denigrating of a broad group of unspecified traders rather than a specified trader is also disparagement.
The court laid down the following requirements for disparagement: a) the impugned statement or act should be untrue; b) the statement ought to have been made maliciously; c) the aggrieved party ought to have suffered a special damage as a result of the statement or act.
The court stated the only caveat to the above defence is that in the process of comparison, the defendant cannot denigrate the goods of its competitors. It is imperative to differentiate between a harmless comparative statement and a statement which tends to be made maliciously without a justifiable cause. The court stated that ultimately consumers understood their needs and so identified products based on such needs.
Constitutional protection
Further, as an advertisement is a form of commercial speech, it is protected under article 19(1)(a) of the constitution of India, albeit with reasonable restrictions. The court therefore dismissed Hindustan Unilever’s claim on the above ground and stated that even if an aggressive advertisement causes a plaintiff partial or temporary damage, ultimately the consumer would be the final adjudicator.
The court held that the defendant did not have a bad faith intention of misleading consumers and directed that the exact quantity of shampoo should be indicated on the sachets.
Nimisha Sinha is an associate in the trademarks department at Lex Orbis
709/710, Tolstoy House, 15-17, Tolstoy Marg
New Delhi – 110 001
India
Tel: +91 11 2371 6565
Fax: +91 11 2371 6556
Email: mail@lexorbis.com
