Delhi High Court decision opens door for broader comparative advertising methods

Comparative advertising is a marketing approach in which an advertiser compares its product to that of its competitors, and is quite a common practice in the Indian market. The Delhi High Court expressed its views on permissible comparative advertising in Reckitt Benckiser (India) Pvt Limited and Ors v Wipro Enterprises (P) Limited, involving two handwash brands: Reckitt Benckiser’s Dettol and Wipro Enterprise’s Santoor [CS (COMM) 258/2023]. The judgment has significant consequences for advertisers as it confirms that comparative commercials have a wide scope and opens the door for myriad ways to depict a product as superior to a competitor’s.

The narrative of the ad in question is as follows: a mother is shown washing her dirty and rough hands with Santoor handwash in order to go and play with her daughter. The child is surprised to feel the softness of her mother’s hand. After the mother plays with her child, she removes a plastic bottle from the shelf labelled “ordinary handwash”, which has the same shape as Dettol’s product, and replaces it with the Santoor bottle. The voiceover emphasises that the new Santoor handwash contains sandal as an ingredient – which keeps hands soft – and an ‘ordinary’ handwash does not.

The allegations against Santoor

Reckitt Benckiser alleged that this ad disparaged its Dettol handwash. It drew the court’s attention to the fact that in the wake of the pandemic, people were frequently washing their hands, and so came to prefer a handwash that did not leave their hands dry but instead kept them soft and moisturised. Therefore, keeping hands soft is a key feature for customers buying handwashes.

It also highlighted several instances of dialogue and scenes that were allegedly damaging to its brand, such as:

• the surprised expression on the child’s face after feeling the softness of her mother’s Santoor-washed hands;
• removing the ‘Dettol’ bottle from the shelf and replacing it with the Santoor bottle;
• the idea conveyed by this replacement (that Santoor moisturises hands while Dettol lacks this quality);
• usage of the word “ordinary” with regard to Dettol’s handwash bottle; and
• the voiceover emphasising the Santoor’s qualities and simultaneously slamming Dettol – the ordinary handwash. 

Reckitt Benckiser argued that the commercial created a false narrative that Dettol does not soften or moisturise hands, although its handwash does in fact contain lactic acid and glycerine, which keep hands soft. However, with the ad, customers were likely to draw an inference that Santoor’s handwash is better. Elucidating on India’s comparative advertising law, Reckitt argued that while praising one’s product is permissible, an advertiser cannot denigrate or disparage the product of a competitor; it alleged that Wipro crossed this line. Further, Reckitt also argued that it had a subsisting design registration for the Dettol handwash bottle’s design and therefore, the depiction of an identically designed bottle in the commercial amounted to piracy.

Wipro defended the advertisement by clarifying that it merely praised its product and did not denigrate Dettol in any capacity. It further claimed that the ad does not comment on any of Dettol’s attributes. Rather, all that it focuses on is the fact Santoor contains sandal – while Dettol does not – and that this ingredient has moisturising properties, which is a truthful assertion. Wipro also pointed out that the act of replacing a bottle with Santoor in the ad is captured in just two seconds and is a message against all the ‘ordinary’ handwash brands that do not contain sandal. In the context of the cases that Reckitt relied upon, Wipro argued that its commercial did not make any statistical comparison of properties to assert its effectiveness over another product.

With regard to the design piracy allegation, Wipro argued that piracy only occurs where the infringing design is used in the context of the product’s sale. Notably, during the course of the arguments, Wipro’s counsel candidly conceded that the ordinary handwash shown in the advertisement was in fact Dettol.

The Delhi High Court’s view

Analysing various cases on comparative advertisement and disparagement, the court summarised that it is impossible that a competitor’s product is not targeted, whether directly or by implication. A certain amount of disparagement is implicit in targeting a competitor’s product. It further explained that misleading and false statements are impermissible, but puffery is an exception since it involves exaggeration and is not tested against truth. In addition, praising the virtues of one product while claiming that they are lacking in a competitor’s product is not actionable; rather, denigrating a competitor’s product to show that it is bad or inferior is not allowed.

The court also explained that what matters most is the ad’s overall impression on a reasonable person. Thus, the ad’s intent, storyline, context and message are crucial; it should not be examined on a frame-by-frame basis, but the overall effect it has on a normal viewer should be analysed. Applying these principles, the court opined that the advertisement did not disparage Dettol since the entire narrative of the advertisement focused on Santoor and did not make any direct reference to Dettol’s qualities or properties. Moreover, the word “ordinary” was used to designate all brands other than Santoor. Finally, the court agreed with Wipro’s argument on design piracy and held that there was no case for piracy.

Despite admitting that the bottle shown in the advertisement was Dettol’s, the court inferred from the dialogue and scenes that the bottle represented all other handwash brands that do not contain sandal.

The court concluded that the overall impression of the advertisement does not denigrate Dettol. In its words, "rubbishing would require a positive denigration of the rival product. That, in the impugned advertisement, is conspicuously absent”.

The judgment has significant consequences for advertisers as it reaffirms the limits of comparative commercials and opens the door for myriad ways to depict a product as superior.