Disparagement – Comparative advertising must be based on truthful statements in overall effect and impact

The Delhi High Court has held that permissible comparative advertising must not be based on statements that are not truthful and/or that misrepresent a state of affairs and/or that are deceptive/misleading - in their overall effect and impact.

The Court here directed the defendant to take down its advertisements while it observed that the direct use of the plaintiff’s trademarks, packaging and advertising expressions, coupled with adverse health-related insinuations and the contemporaneous exhortation to ‘Switch to …. (defendant’s product)’, demonstrated that the campaign was a premeditated, competitive attack by the defendant, which exceeded permissible limits of promotional puffery.

It was also noted that the campaign cited complex chemical names, proportions, and percentages of the harmful ingredients to give the viewer a sense of certitude that the plaintiff’s products are risky to use, and thus, prima facie crossed the permissible contours of comparative advertising. According to the Court, ‘an average consumer would neither bother nor have the expertise to analyze or deconstruct the narrative contained in the impugned campaign nor would they reason with themselves or undertake a critical, scientific analysis of whether the statements contained in the impugned campaign are true when the plaintiff’s products are used in the usual and ordinary way in daily life’.

The Court in Hindustan Unilever Limited v. Kwick Living (I) Private Limited also observed that where truth is pleaded as a defence against a claim of commercial disparagement, the enquiry cannot end with verification of the discrete elements of the advertisement as canvassed by a defendant. It was also stated that the Court must also examine whether the inference or conclusion that the advertisement invites the average consumer to draw is false and/or misleading and/or deceptive when tested against the underlying material.