HUL restrained from comparing 'Ponds' products with 'Nivea': Delhi HC

The Delhi High Court has restrained Hindustan Unilever from engaging in marketing or advertising activity of comparing its 'Ponds' products with 'Nivea' products—either expressly or by implication or association, through sales representatives in various malls in the national capital and Gurugram.

“The Court is of the opinion that the impugned activity undertaken by the defendant choosing to compare plaintiff's 'Nivea' products (either expressly or by implication or association) and defendant's products, especially those under the trademark 'Ponds', are prima facie misleading and disparaging, and cause irreversible prejudice to plaintiff,” said Justice Anish Dayal. He observed that the activity amounts to disparagement or denigration of the latter's products or business.

The order was passed on the back of an interim injunction application filed by Beiersdorf AG, the company manufacturing Nivea products, in its suit against HUL.

As per the plaintiff, sales representatives of HUL would apply cream from the “blue tub” on the skin of the walk-in customers on one hand and Ponds product on the other hand- would then use a magnifying glass in an attempt to assure the customers that blue tub product left an oily residue on their skin as compared to Ponds Super Light Gel. To this, Justice Dayal observed that prima facie, the colour blue was certainly associated for years with the plaintiff's product 'NIVEA', which has achieved distinctiveness and has become popular.

“Plaintiff claiming exclusivity in this colour is not the issue, however, the use by defendant in the impugned activity of a blue colour tub is too much of a coincidence to ignore. The allusion seems to be to the distinctive blue colour used by plaintiff,” the court said.

It further said that there was no reason why HUL could not have used a heavy cream in a different colour tub in order to compare.

Additionally, on puffery and disparagement, the court observed that the law relating to advertisements in any form whether print, digital, or TVC will extend to in-mall marketing campaigns as well. The court reasoned that ultimately, in-mall marketing campaigns it is a method of promotion and marketing of a company's product to a consumer, in a much more personalised and interactive set-up.