‘Domex’s advertisement disparaged Harpic’: HC division bench upholds single judge’s order

The bench noted: “There can be little doubt that the impugned advertisement is disparaging to Reckitt’s product. It mentions Harpic in particular and claims that Domex fights bad smells for a longer period of time. Apart from that, it shows that the toilet bowl cleaned with Domex emanates fragrance while that cleaned with the use of Harpic emanates a foul smell.”

The bench further said that while an advertiser can indulge in “puffery and hyperbole to reflect its product in a good light”, he, however, cannot claim that his competitor’s product is “bad, substandard or its use would be detrimental to the interest or well-being of the customers”.

The bench also called the advertisement “untruthful” to the extent that it reflected that a toilet cleaned by Domex would emanate fragrance, while the one cleaned by Harpic would emanate a foul smell.

“In the aforesaid view, we find no infirmity with the decision of the learned Single Judge in interdicting HUL from publishing the impugned advertisement on the ground that it, prima facie, denigrates and disparages Reckitt’s product Harpic,” the bench held.

The single judge had passed the order on November 9, 2021.

With respect to the three YouTube videos, the bench accepted Reckitt’s contention that its product has been depicted as “an ordinary toilet cleaner” observing that the first and third videos were disparaging towards Harpic. For the second video, the court observed that the message sent out was that Domex combats bad odour for use up to 100 flushes while Harpic does so only till the first flush.

On the dispute over the shape of the bottle in the videos, the bench said that they concurred with the prima facie view of the single judge that the “shape of the bottle, as depicted” in the videos, “is deceptively similar to Reckitt’s trademark”.

The bench said: “Trademarks are source identifiers and therefore, we find no infirmity with the reasoning of the learned Single Judge that the depiction of the bottle of an ordinary toilet cleaner in the impugned videos is likely to be identified as Reckitt’s product Harpic.”

The HC observed that the “a false advertisement campaign” would cause “irreparable loss” to Reckitt.

“…the learned Single Judge has not interdicted HUL from broadcasting the impugned videos but merely directed that it remove all references to Rekitt’s product…,” the bench said as it dismissed HUL’s plea.