Mumbai: Hindustan Unilever Ltd (HUL) and the Gujarat Cooperative Milk Marketing Federation Ltd (GCMMF) continue to fight it out in Bombay high court over whether the latter’s Amul ice-cream ads disparage HUL’s Kwality Wall’s frozen desserts made with vegetable fat.
But this is not the first time that two big FMCG companies have crossed swords in a legal forum. India’s legal history is replete with examples of brands that have accused each other of “disparaging" their brands or the class of products they’re in. In the course of HUL and GCMMF’s arguments in their ongoing case, lawyers on both sides have cited these cases several times.
A look at five past cases of brand battles and the judgments passed in each of them:
Reckitt & Colman of India vs M.P. Ramachandran
One of the earliest cases of trademark and intellectual property infringement, this landmark case from 1999 laid down the principles that allowed comparative advertising in India under certain rules. Ramachandran’s Jyothy Laboratories released a television ad that claimed its new Ujala fabric whitener was better than other blue whiteners because the latter would leave blue patches on white clothes.
Reckitt had claimed that while the ad only said “neel", it clearly disparaged their product Robin Blue which was the market leader in blue whiteners. Also, Jyothi Labs had used Robin Blue’s packaging and its price of Rs10 to refer to the generic “neel" in its ad, leaving no ambiguity. In 1999, the Calcutta high court upheld Reckitt’s plea and ordered that Jyothi Labs to stop airing the offending ads. The judgment laid out the five principles of comparative advertising, which allowed hyperbole and even lies in claims that one’s product was the best, as long as the ad did not “defame" or lie about the competition.
PepsiCo Inc. and Others vs Hindustan Coca-Cola Ltd
Coca-Cola India-owned Thums Up ran an ad in 2003 that took a dig at rival Pepsi, with a bottle labelled “Pappi" and a logo similar to Pepsi’s trademark. The ad urged customers not to pick Pepsi because it was sweet and therefore meant for children, while Thums Up was a “strong" drink. The ad also parodied PepsiCo India’s famous “Yeh Dil Maange More" tagline and the Pepsi roller-coaster ad that the company made famous globally.
In 2003, justice Usha Mehra of Delhi high court upheld part of PepsiCo’s plea and restrained ads by Thums Up that referred to PepsiCo’s trademark, name and logo, and the roller-coaster visual associated with its global ad. This judgment also established the three principles by which to ascertain whether an ad was disparaging—intent, manner and story line of the commercial. This became a key part of many similar cases later.
Dabur India Ltd vs Emami Ltd
This case bears striking similarity to the one HUL and GCMMF are now fighting in Bombay high court. Emami Ltd, makers of Sona-Chandi Amritprash, ran television ads that claimed that chyawanprash would harm consumers during summers. Emami’s new product claimed Amritprash was the better choice in the summer.
Dabur accused Emami of disparaging its chyawanprash, saying it was irrelevant that the ad mentioned only chyawanprash—a generic class of products—since Dabur commanded 63% of the total market. In 2004, Delhi high court’s justices U. Mehra and O. Dwivedi ruled that by asking people not to eat chyawanprash, Emami’s ads were also asking people not to buy Dabur Chyawanprash. The ads were ruled disparaging and were stopped on Dabur’s plea.
Dabur India vs Colortek Meghalaya and Godrej Sara Lee
In another case similar to the HUL vs GCMMF one, makers of the Odomos mosquito repellent cream accused Godrej Sara Lee, maker of Good Knight Naturals cream, of disparaging its product by advertising that certain repellent creams could cause rashes while Good Knight Naturals would not, because it contained lavender, tulsi and milk protein.
Dabur argued that the ad did not need to mention Odomos by name to disparage it because the brand commanded 80% of the repellent cream market. Justices Madan Lokur and Mukta Gupta said the ad simply promoted Good Knight Natural’s benefits that addressed reasonable concerns of using any repellent cream—rashes—that Odomos may or may not cause. If this was disparagement, the justices argued, then no mosquito repellent maker could advertise its products without denigrating Odomos, which had a market monopoly. The court denied Dabur’s appeal and allowed Godrej’s ads to continue.
Reckitt Benckiser (India) Ltd vs Hindustan Unilever Ltd
An advertisement for Vim Liquid run by HUL implied Dettol’s Healthy Kitchen was a “harsh antiseptic", similar to the flagship Dettol liquid, misleading consumers that the Dettol washing liquid was unsafe for kitchen use. In 2013, justice M.L. Mehta ruled that HUL’s Vim ad did disparage Dettol Healthy Kitchen by misusing the ordinary public’s association of “harsh antiseptic" with Dettol. The ad was removed.