By Rima Majumdar and Aashi Nema
Introduction
Hindustan Unilever Ltd. (HUL) filed a suit along with an interim Application for injunction before the Honâble Delhi High Court against RSPL Ltd., alleging that the Defendantâs advertisements disparage and defame its detergent brand, âSurf Excelâ.
In a significant Order, the Honâble Court held in favor of the Plaintiff, declaring the impugned advertisements by the Defendant as derogatory and defamatory of the Plaintiffâs products, after applying the established âPrinciples of disparaging advertisementâ. (read more at: https://ssrana.in/articles/puffery-vs-disparagement-the-bombay-high-court-reiterates-key-principles-of-comparative-advertising/ )
Background of the Dispute
- The present suit was filed by HUL seeking injunctive relief against the alleged acts of disparagement, defamation and infringement concerning its popular detergent brand âSurf Excelâ. The Plaintiff, one of the market leaders in the category of detergent, claims an annual turnover of approximately Rs. 11,000 Crore from its âSurfâ branded products. The Plaintiff highlighted that âSurf Excelâ has acquired a distinctive reputation and goodwill in the Indian market.
- The Defendant, RSPL Ltd., released a series of four television and digital marketing commercials in first week of June 2025, which HUL alleged, were designed to target and belittle its âSurf Excelâ product, thereby constituting disparagement and infringement of its registered trademarks.
- The Plaintiff submitted that the impugned advertisements mimic and allude to its popular advertising campaign âDaag Achhe Hainâ and its prominent blue-colored packaging, both of which are widely associated with ‘Surf Excel’.
Alleged Disparaging References:
| S. No | Plaintiffâs Product Reference | Comments in Defendantâs Advertisement |
| 1 | Plaintiff prominently uses âBlueâ colour packaging for its Surf Excel products. | Use of light blue and dark blue packaging in the advertisement. |
| 2 | Plaintiffâs product branded as âSurf Excelâ | Use of the term âXL Blueâ |
| 3 | Plaintiffâs advertisement campaign under the slogan âDaag Ache Haiâ | Use of the expressions like:
1.      âIske Jhaag ache hai, daam ache haiâ (productâs price is high) 2.     âNa na, ye dhoka haiâ (this is a fraud) 3.     âAapka kare badi badi baatein, dho nhi pateyâ (your product makes big claims but cannot wash clothes)
|
Contentions of Plaintiff
- The Plaintiff argued that while it sells âSurf Excelâ in various packaging formats, the blue-colored packaging is prominent and visually associated with its product in the minds of consumers.
- The Plaintiff claimed that the Defendantâs commercials were intended to ridicule and undermine its product by employing similar visual cues and making statements that mock its performance and brand messaging.
- The first advertisement was released on June 3, 2025 and the others on June 7, 2025. A cease-and-desist notice was sent by the Plaintiff to the Defendant on June 7, 2025, against which the Defendant refused to comply.
Contentions of Defendant
- The Defendant contended that Plaintiffâs registration of trademark
bearing registration no.1065243 in class 03 itself is a conditional one. It includes a disclaimer that grants no exclusive rights over the word âExcelâ, implying that the Plaintiff cannot claim a monopoly over the term. - The blue-colored product packaging is common in washing powders, with brands like Fena, Ariel, Henko, Wheel etc. also using blue colour scheme in product packaging.
- The Defendant also pointed that the words âXL Blueâ and âXLâ are registered trademarks of a third party since 2018.
Observations of the Court
After examining the video advertisements in question, and considering the various precedents on the aspect of disparagement, the Court summaries the legal position on this question as under:
- A person may advertise its products to promote his own goods so long as same is not deliberately tarnishing or defaming the competitorâs products.
- Derogatory remarks against any competitorâs products are impermissible.
- While puffery is allowed, defamation and tarnishing a competitorâs product is not.
The Honâble Court observed that, when viewed from the perspective of an average consumer, the impugned advertisement clearly made reference to Plaintiffâs âSurf Excelâ product. Applying the aforesaid principles to the present case, the Honâble Court was prima facie inclined to direct the Defendant to remove the derogatory innuendoes from its advertisement, as an ad-interim measure.
Hence, the Court directed the following statements to be removed from the advertisements by June 24, 2025 and only then would be allowed to telecast these advertisements:
- âAapka kare badi badi baatein par dho nahi paateâ [Translation: âYour product makes tall claims but cannot washâ]
- âIske jhaag acche hai, daam acche haiâ [Translation: âIts foam is good, price is goodâ- Expressions which clearly refers to the Plaintiffâs product prima facie and appear to be derived from the âDaag ache haiâ campaign of the Plaintiff]
- âNa Na, yeh dhoka haiâ [Translation: âNo, No, this is a fraud (product)â]
Authorâs Note
In the present case, even if not mentioning the Plaintiffâs brand by name, Defendantâs advertisement was found to be clearly suggestive and derogatory, thereby crossing the threshold of permissible comparative advertising. This case emphasized on fine line between legitimate comparative advertising and unlawful disparagement. The Honâble Delhi High Courtâs order reinforces the judicial commitment to preserving commercial ethics and protecting brand reputation in an intensely competitive market.
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