Tag Archives: comparative advertising


In our previous post, we touched upon concepts of comparative advertisement, compare to various jurisdictions.  In this post, we are delving deeper into some of the case laws, which read together provides some guidelines that can be used as a cheat-sheet for product/ price comparison or comparative advertising.


The case of Hindustan Unilever Ltd. v. Reckitt Benckiser (India) Ltd.[1] decided by the High Court of Calcutta forwards some interesting conclusions regarding ‘comparative advertising’ in India. The parties are two leading consumer goods manufacturers in India – Hindustan Unilever (“Unilever”) and Reckitt Benckiser (“Reckitt”) and the dispute has arisen over certain advertisements published by both parties through which each company alleges that the other has disparaged their products.


The dispute which had arisen in this case related to four advertisements – two published by Unilever and two published by Reckitt. It was alleged that Reckitt’s promotional ads for their new product – Dettol Healthy Kitchen Gel, were aimed at disparaging Unilever’s product Vim. Unilever, in retaliation, had published advertisements of their products – Vim and Lifebuoy, which picked at Reckitt’s new product.

We shall look into the impugned ads one by one to understand the precise nature of these:

  • The first advertisement published by Reckitt, referred hereinafter as Advertisement I, was a print media ad in which a white plate was put under a magnifying glass and it was claimed that one half of the plate was cleansed using Dettol Healthy Kitchen Gel and the other one using a ‘leading dishwash’. The half which was supposedly cleaned with the ‘leading dishwash’ showed substantially more germs as compared to the other half which had only one germ. The ad claims that the Dettol product “kills 100X more germs”.
  • The second advertisement by Reckitt, referred hereinafter as Advertisement II, was in the form of a television ad which showed the same idea which had been portrayed in the print ad. However, this time the ad shows a Vim product being used along with the Dettol product. The claim of killing hundred times more germs is repeated.
  • The third advertisement, referred hereinafter as Advertisement III, was of Unilever’s product Lifebuoy soap. The ad highlights the germ killing capacity of Lifebuoy as compared with Dettol antiseptic liquid, another of Reckitt’s products. The ad also includes the following statement – “It’s proven! Lifebuoy gives better germ protection then Dettol antiseptic liquid while bathing”. Curiously, the part which reads ‘while bathing’ has been written in a much smaller font as compared to the rest of the claim.
  • The fourth advertisement, referred hereinafter as Advertisement IV, was of Vim dishwash in which Unilever has compared it’s product with another product – brownish in colour having a blue cap and a white label. This second product is an antiseptic and it is said that such products are bad for children and so children should not be allowed to wash utensils with them. Vim is shown as containing a natural ingredient – lemon, which makes it suitable for all.

Left side: Advertisement I by Reckitt; Right side: Advertisement III by Unilever


Regarding Advertisements I & II:

Reckitt had just launched its new product – Dettol dishwash gel, which was in line with their major product, the Dettol antiseptic liquid. Reckitt’s case is that the focus of their advertisement campaign was on “germ killing”, which is a unique character of their products and that these products are registered as drugs under the Drugs and Cosmetics Act, 1940. Their new product, the dishwash gel, had a cleaning agent to the drug which makes it both a cleaning agent as well as a germ killer. This gives their product enhanced efficacy as compared to Unilever’s products which do not contain any drug. The thrust of Reckitt’s campaign is this aspect of their new product, which makes it more efficacious than Unilever’s Vim, which is merely a cleaning agent with germ cleaning capacity. Reckitt argued that since Dettol was 10 times more efficacious than soaps without actives, they can have advertisements of this nature as they have a right to tell the truth to the customers. In support of this argument, they relied on section 29(8)[2] and section 30(1)[3] of the Trade Marks Act, 1999. They contend that section 30 is in the nature of an exception to the concept of infringement and that the one can use the mark of another for the purpose of identifying the goods with a proprietor, but such use had to be honest and no unfair advantage or detriment to the repute of the trade mark was to be caused. They claim such an interpretation permits comparative advertisements and that the impugned advertisements fall within the scope of such an exception. To justify their claims Reckitt has relied on scientific data which verifies that under particular conditions Dettol Healthy Kitchen Gel could achieve much greater reduction of germs than Vim could achieve. Reckitt has also argued that the right to make “commercial speech” is guaranteed under Article 19 of the Constitution and these advertisements were a type of commercial speech.

Unilever contended that the reference in Advertisement I to ‘leading dishwash’ was necessarily and innuendo referring to Vim, as they had 2/3rd share of the market by terms of volume sale and turnover, making any reasonable person understand it as a reference to Vim. In Advertisement II, there is a direct reference to their product Vim. They also questioned the results of scientific tests submitted by Reckitt, contending that the conditions, in which those tests were carried out – a suspension test carried out by a virtually undiluted liquid for a period of 5 minutes, would not hold good as the conditions in which the product would be used in practice does not correspond to those conditions. They filed another test report which claims that in the practical conditions, while the Dettol product achieves 99.99% reduction in germs, Vim achieves 99.95%.

Regarding Advertisements III & IV:

Reckitt’s primary contention regarding Advertisement III is that comparison should be like to like. Dettol Antiseptic Liquid was recommended as a supplement to soap for bathing and was not a soap which ought to be compared with Lifebuoy soap. Thus, by publishing misleading advertisements they argue that there has been an infringement of their trade mark Dettol as it is contrary to honest practice and is detrimental to its distinctive character. They also highlighted the fact that the words “while bathing” were printed in very small font in an attempt to mislead the readers.

Regarding Advertisement IV, Reckitt argue that the antiseptic in the ad is a reference to Dettol because it has 85% market share and that the colour can be easily identified with Dettol. They contend that identification with Dettol is easier by the use of the bottle the shape of which is similar to the Dettol Antiseptic Liquid bottle containing the amber colour liquid. Again, a non-antiseptic is compared to an antiseptic product, which according to them is not correct. Further, they point out that even Vim has a warning that it should be kept away from children.

Unilever contended that the bottle does not resemble Dettol bottle and that the plaintiff cannot claim monopoly over the colour amber/brown of the liquid. They contend that truth is an absolute defence in disparagement and there truth in the content of the advertisement i.e. that Dettol is an antiseptic and should be kept away children. They also tried to rely on the de minimus principle, i.e. to say that the use of the bottle, being for less than a second, had a minimal effect.


The court in their observations paid attention to the following legal principles in order to resolve the dispute between the parties.

  • Nature of advertisements: Relying on various English and Indian judgements[4] relating to the law of disparagement, the Court observed that generallyadvertisements are taken as a hyperbole by reasonable people. Ordinary man takes advertisements with a ‘large pinch of salt’. They observed that saying that one’s goods are the best in the world is only a more dramatic way of saying that his goods are better than those of his rivals. Such statements being made by traders ought to be allowed, as advertisements are generally of a ‘puffing’ nature. However, if that trader were to go further ahead and make statements which were positively injurious to his competitor’s product, that would amount to disparagement. Thus, it is the degree of defamation which mattered in deciding if a claim of one person was disparaging the product of another. Regarding comparisons being made, the court held that general comparisons being made may be allowed. If it were not to be so, the courts of law would be turned into a mechanism for advertising rival productions by obtaining a judicial determination of which product was better. Thus, the court held that comparing the qualities of one’s product with those of another is permitted, only if it is in the nature of a ‘puff’. This is so because while making a serious comparison of the qualities of a rival product, one may directly or indirectly denigrate another product. This is so, because, one must presume a constant bias in the mind of a trader, and hence claims about a rival’s product are bound to be false, misleading, unfair or deceptive. At the same time, there is a greater chance that a person may take such an advertisement more seriously due to a reference to specific claims such as scientific reports. The court observed that the principle of law, therefore, stands firmly established that disparaging advertisement, whereby the product of the competitor is denigrated is not permissible.
  • Truth as a defense: The court observed that defense of truth or justification in the law of defamation, is not available in actions alleging disparagement of goods and services and arising out of a comparative commercial advertisements. Citing this reason, the court held that the scientific reports relied on by the parties would be wholly immaterial. Further, the courts would not be inclined in verifying the truth of each claim and comparisons of the products as it is not a machinery to adjudge which product is better. The court held that the sole test that would be relevant is that of the reasonable man, i.e. from the nature of the advertisement is there a chance of the reasonable man being misled.
  • Right to commercial speech: Relying on the Supreme Courts observations in Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd.[5] the court held that the right to freedom of speech and expression under Article 19(1) encompasses the right to make and receive commercial speech. However, as with any other right, it is subject to Article 19(2) of the Constitution. Court observed that commercial speech which is deceptive, unfair, misleading and untruthful would be hit by Article 19(2). While the right to commercial speech gives a right to a trader to advertise his product, there is nothing in the existing law to permit a serious comparison by a trader of his product with the product of another. When this happens the commercial speech becomes unfair.

After a consideration of the following legal principles, the court reached the following conclusions:

Regarding Advertisement I & II: The court agreed with the claim of Unilever that the reference to ‘leading dishwash’ would lead any reasonable man to construe it as a reference to Vim. They held that the law relating to innuendo in defamation applies to cases of disparagement of goods as well. Further, they held that the claim of killing ‘100X more germs’ than ‘leading dishwash’ and Vim (as directly referred to in Advertisement II) was in the nature of a serious comparative advertisement. They held that while proclaiming that Dettol Healthy Kitchen Gel ‘kills 100X more germs’ is permitted within the rule enunciated by White v. Mellin, at the same time showing the application of Vim whereby no germs are killed or removed, certainly denigrates Vim. The court said that the failure to show the germ removal capacity of Vim, without killing them, as declared by Unilever makes the advertisement one-sided and hence unfair and devoid of honest intention.

Regarding Advertisement III & IV: The court held that the Advertisement III did not show the product of Reckitt in a proper perspective as Dettol antiseptic liquid is predominantly for germ eradication, as compared to Lifebuoy, which is for cleansing. The Dettol product has been marketed by Reckitt as a supplement to a cleaning agent and it is unfair to compare it then with such a cleaning agent. Further, they held that showing Reckitt’s product in an inappropriate dilution and context and then declaring that it has no germ protection capacity when compared to Lifebuoy was indeed disparaging Reckitt’s product. Regarding Adverstisement IV, the court upheld Reckitt’s contention that the antiseptic product being shown in the ad would be, according to a reasonable man, an innuendo to Dettol products. They observed that by saying that Dettol products being an antiseptic is dangerous would be detrimental to the product and hence amounts to disparagement.

The court held that all the advertisements were hit by section 30 of the Trade Mark Act, 1999 as they were serious comparative advertisements which caused disparagement of the other’s products. All the impugned advertisements were injuncted by the court.


With comparative advertising becoming more common, this case has laid down certain basic principles regarding comparative advertisement which may have the effect of greatly restricting the scope of this form of advertising. While the court has held that advertisements are not to be seen as true representations of the products and is indeed a hyperbole, they have signaled a strict no-no to attempts at picking on the products of one’s competitors through positively injurious remarks or by making serious (the meaning has to be understood as giving the reasonable viewer a more serious impression) comparisons with such products. While this judgement lays down certain basic principles, there is much that requires more clarity such as questions as to what would be a reasonable amount of puff or when would puff turn into serious comparison. Maybe someday, the Apex Court will get an opportunity to make the law more clear.

Author:  Gautam Aredath is a 4th year law graduate at NLIU, Bhopal. He is currently interning with NovoJuris.

Disclaimer:  This is not a legal opinion.

References :

[1] Along with Reckitt Benckiser (India) Ltd. v. Hindustan Unilever Ltd., in which the companies were litigating against one another over a series of similar facts and circumstances. Judgement delivered on September 23, 2013.

[2] S. 29(8) – A registered trade mark is infringed by any advertising of that trade mark if such advertising – (a) takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or (b) is detrimental to its distinctive character; or (c) is against the reputation of the trade mark.

[3] S. 30(1) – Nothing in section 29 shall be construed as preventing the use of a registered trade mark by any person for the purposes of identifying goods or services as those of the proprietor provided the use – (a) is in accordance with honest practices in industrial or commercial matters; and (b) is not such as to take unfair advantage of or be detrimental to the distinctive character or repute of the trade mark.

[4] Timothy White v. Gustav Mellin, 1895 AC 155 and De Beers Abrasive Products Ltd. v. International General Electric Co., [1975] 2 AllER 599 were heavily relied upon in understanding the nature of advertisements and the scope of comparisons between products.

[5] AIR 1995 SC 2438.



The recent judgment in September 2013 by the High Court of Calcutta in the case of Hindustan Unilever Ltd. v. Reckitt Benckiser (India) Ltd and with so many e-com sites doing a compare of prices, product features, we have the two part series covering aspects of comparative advertising, what’s allowed and when does it goes awry.

Comparative advertising can be loosely described as advertising in which one product is compared with another product, usually of a competitor, either implicit or explicit in nature. Comparative advertising is used for claiming that one’s product is better than those of the others or of a specific competitor.

advertsWhile comparative advertising has been around for a long time, it saw a surge in the 1970s when the US Federal Trade Commission advocated comparative advertisements on the grounds that they helped in dissemination of information and a better advertising for consumers regarding the products they use. However, comparative advertisements also have various issues which often lead to disputes between traders, primarily because a trader can never be objective while comparing his products with another’s and this bias may lead to misrepresentations and untrue claims. If the claims made by one are indeed untrue and damaging to the repute of the competitor’s products, it amounts to product disparagement.


Advertisements in general are a form of puffery, or a hyperbole as compared to the reality. Such puffery is still allowed even in comparative advertising, but in some cases it is disallowed. Lets examine.

Comparative advertisement itself can be of two forms – implicit comparative advertisements and explicit comparative advertisements.

Implicit comparative advertisements are those in which no direct reference is made to a specific competitor or his trade mark, but is essentially an allusion to a competitor and such allusion is clear to the reasonable man.

In explicit comparative advertisements, there is specific reference or comparison with a competitor’s product or trademark and often claims are made that the advertiser’s product is better than the other. This form of puffery is allowed, both in the implicit form as well as explicit form. However, if the comparison crosses certain limit and becomes in the nature of denigration of another product, in such cases it is said to amount to product disparagement. Along with the tortuous liability for such disparagement, the advertiser may also be liable for infringement of trademark if the advertisement is explicit in its comparison and is not within the limits allowed for.

The exact scope of comparative advertising differs from jurisdiction to jurisdiction, and hence when such an advertisement amounts to disparagement is a question of domestic law.


The US, being one of the forerunners of free-market economy, has fairly liberal rules regarding comparative advertising. In their system of law, denigration of another’s product is not actionable if such attack, discrediting or criticism is truthful and not expressly or impliedly deceptive. Carter Products, Inc. [60 FTC 782].  Under US trade mark legislation, a comparative advertisement is bad in law if it is literally false or of a deceptive nature which might pass on an implied message even though the claim is literally true or is ambiguous. However, it is up to the person claiming disparagement to prove that such an implied message which was injurious was passed on to the viewers or consumers. The Federal Trade Commission which regulates advertising has also taken a liberal view that there should be no restraint of truthful comparative advertising. Further, the US also allows goods or products of one kind to be compared with goods or products of a dissimilar kind.

The EU has a narrower scope for comparative advertising, as compared to the US position. The UK, which earlier followed common law principles while adjudging claims of disparagement, is now guided by the EU directives on the topic. The guidelines lays down that the comparative advertisements should not be misleading and must not discredit or denigrate the trademarks or goods of another. However, they are allowed to objectively compare one or more material, relevant, verifiable and representative features of such trademarks and products. The EU restricts comparisons between unlike goods or products. Even though the EU position is slightly more restrictive, in that it cannot be denigrating even if truthful, the existence of concrete guidelines defining the scope have created a favourable climate for comparative advertising.


Comparative advertisement and disparagement claims in India are still adjudged on the basis of common law principles. It can also be said that there is passing reference to comparative advertising in section 30(1) of the Trade Marks Act, 1999 which allows for the use of a trade mark by another as long as such use is in accordance with honest practices and not to take unfair advantage of or to be detrimental to the distinctive character of the trade mark. The Code of Advertising Standards Council of India, 1985 also prescribes conditions under which comparative advertisement can be made. Thus, even though it can be said that the legislation allows comparative advertising, the Indian position remains extremely restrictive.

The basic position regarding the nature of comparative advertising was given in case Reckitt and Colman of India Ltd. vs. M.P. Ramchandran and Anr. [1999 (19) PTC 741], wherein it was held that (i) a seller is entitled to declare his goods to be best in the world, even though his statement is not true; (ii) he can say that his goods are better than his competitors’ goods, even though his statement is not true; (iii) he can compare the advantages of his goods over the goods of others; (iv) however, he cannot say that his competitors goods are bad. Thus, while comparison of products is allowed in India what is not allowed is portraying the other’s product in a negative light. The question as to whether the comparison is disparaging the other’s product has to be answered considering factors such as: (i) intent of the commercial; (ii) manner of the commercial; and (iii) storyline of the commercial and the message sought to be conveyed. (Dabur India Ltd vs. Colortek Meghalaya Pvt. Ltd., [2009 (42) PTC 88]). Thus, what needs to be looked at is whether there is an intention to denigrate a competitor’s product, more than what is allowed or what is required to portray one’s product as better than the other’s. In Tata Press Ltd. vs. MTNL, [(1995) 5 SCC 139] it was held that if an advertiser declares his goods as better than another’s, the advertiser must have some reasonable factual basis for the assertion made. However, in the case of Reckitt Benckiser (India) Ltd. v. Hindustan Unilever Ltd. decided by the Calcutta HC in 2013, the court held that truth cannot be said to be an absolute defence to a claim of disparagement, as the court will not go into the merits of the specific claims being made. It said that while general claims of superiority may be made, specific claims ought to be avoided. If the claims are of such a nature as to make the reasonable man take it more seriously than a normal advertisement, in such a scenario the comparison may cross the permitted limit.

The problem with the law regarding comparative advertisement in India has been the multiplicity of interpretations and approaches by various courts in the absence of a specific legislation dealing with it. The general position, as of now, is that while comparisons with products of others are allowed they should not be denigrating such products, even if such claims are truthful. There is a need for the legislators to look into the issue and come up with a framework, or for an authoritative disposition on the issue by the highest court of the land.

Over the next post, we are going to examine some of the decided case laws in India and derive a cheat-sheet for comparative advertising.

AuthorGautam Aredath is a 4th year law graduate at NLIU, Bhopal. He is currently interning with NovoJuris.

Disclaimer:  This is not a legal opinion.