Delhi High Court orders BECO maker to withdraw campaign suggesting Vim and Surf Excel cause skin irritation, clarifies limits of comparative advertising

Hindustan Unilever Limited (“HUL”) sought an interim injunction under Order XXXIX Rules 1 and 2 read with Section 151 CPC against Kwick Living (I) Private Limited (“Kwick Living”) in respect of its advertising campaign titled “War on What’s Hidden”.

The campaign referred to HUL’s Vim and Surf Excel products, displayed their trademarks, packaging and products, and referred to HUL’s advertising expressions including “Power of 100 Lemons/100 Nimbuon ki Shakti” and “Daag Acche Hain”.

The campaign stated that ingredients such as Linear Alkylbenzene Sulfonate (“LAS”) and Benzisothiazolinone (“BIT”) could cause skin irritation and allergic reactions, identified their alleged presence in specified HUL products, and urged consumers to “Switch to BECO”, Kwick Living’s competing products.

The campaign was disseminated through social-media platforms, YouTube, influencers, the defendant’s website and physical hoardings.

HUL alleged that the campaign falsely conveyed that its products were unsafe and capable of causing skin irritation, redness, itching and eczema, thereby constituting commercial disparagement, trademark and copyright infringement, passing off and unfair competition.

Kwick Living contended that the statements were ingredient-specific, scientifically supported, factually accurate and protected comparative advertising, and that the campaign merely disclosed the potential effects of LAS and BIT.

The Court noted that the Division Bench had prima facie held the suit maintainable territorially after Kwick Living disclosed its Delhi GST registration, principal place of business and Delhi-based hoardings and sales.

The present decision concerned only HUL’s application for interim relief.

Whether the impugned campaign constituted actionable commercial disparagement by conveying a false, misleading or deceptive message about HUL’s products, notwithstanding that individual statements regarding the presence or capabilities of LAS and BIT might be factually accurate.

Whether Kwick Living had established a prima facie tenable defence of truth or scientific substantiation sufficient to resist an interim injunction.

Whether HUL satisfied the requirements for interim relief—prima facie case, balance of convenience and irreparable injury—and whether the entire campaign or only particular offending representations should be restrained.

The Court applied Order XXXIX Rules 1 and 2 read with Section 151 CPC governing interim injunctions, requiring consideration of a prima facie case, balance of convenience and irreparable injury.

It applied the constitutional protection afforded to commercial speech under Article 19(1)(a), while recognising that false, misleading, unfair or deceptive advertising is not protected.

Comparative advertising is permissible, including identification and limited use of a competitor’s mark under Sections 29(8) and 30(1) of the Trade Marks Act, 1999, provided the use is honest and does not result in falsehood, misrepresentation, deception or actionable denigration.

Relying principally on Dabur India Ltd. v. Colortek Meghalaya (P) Ltd., Colgate Palmolive Co. v. Hindustan Unilever Ltd., Reckitt Benckiser (India) (P) Ltd. v. Hindustan Unilever Ltd., Hindustan Unilever Ltd. v. Reckitt Benckiser (India) (P) Ltd., and TV Today Network Ltd. v. News Laundry Media (P) Ltd., the Court held that some unfavourable comparison or puffery is permissible, but the overall message must not be false, misleading or deceptive.

Truth is a possible defence to commercial disparagement, but the defendant must show a prima facie credible and tenable basis for that defence; the Court must assess the advertisement holistically from the perspective of the average consumer, rather than examining isolated words, images or scientific data.

The Court distinguished a merely unfavourable comparison from actionable disparagement, holding that adverse comparison alone is not unlawful; the actionable wrong lies in a false, misleading or deceptive representation causing injury to the competitor’s product or reputation.

Although LAS and BIT might individually be capable of causing irritation and might be present in HUL’s products, the campaign juxtaposed those facts with images of HUL’s products, warnings regarding irritation, redness, itching and eczema, references to years of consumer trust, and the exhortation to “Switch to BECO”.

Viewed as a whole, the campaign conveyed to an average consumer that ordinary use of HUL’s products would cause skin irritation or related harm.

The Court held that a non-expert consumer would not scientifically deconstruct the campaign or assess whether the ingredients were harmful at the concentrations present when the products were used as directed.

The Court further held that the defendant could not establish, at the interlocutory stage, that its ingredient-level data justified the product-level inference conveyed by the advertisements.

Conflicting laboratory reports and scientific material required expert evidence at trial, but the defendant still had to demonstrate a prima facie credible basis showing that the overall message was truthful and not misleading.

The commercial context—particularly the direction to replace HUL’s products with BECO products described as “hypoallergenic”, “baby safe” and “pet safe”—also revealed that the campaign was not merely a public-awareness exercise.

Accordingly, the campaign crossed the permissible limits of comparative advertising.

The continuing dissemination threatened HUL’s goodwill and consumer confidence, whereas Kwick Living could continue advertising its own products through lawful, non-disparaging means; hence, the balance of convenience and irreparable injury favoured HUL.

Kwick Living was directed to forthwith pull down, remove and recall all advertisements forming the subject matter of the proceedings, in every form, format or medium, containing the offending statements, within one week from the judgment, and to file an affidavit of compliance within one week thereafter.

The restraint was expressly limited to the impugned campaign and did not prevent Kwick Living from undertaking otherwise lawful comparative advertising concerning HUL’s products.