In the case of Hindustan Unilever Limited (HUL) vs. Abbott Laboratories & Ors., the Bombay High Court granted an interim injunction against Abbott Laboratories, with respect to its ‘Ensure Diabetes Care’ advertisement for disparaging HUL’s nutritional beverage, ‘Horlicks Diabetes Plus.’
HUL’s Arguments on Disparagement
HUL argued in the case that Abbott’s advertisement for its competing product, Ensure Diabetes Care, was designed to denigrate HUL’s product by subtly casting it in a negative light. The advertisement showed a protagonist, portrayed as a medical expert, physically pushing away a blurred image of Horlicks Diabetes Plus and replacing it with Ensure Diabetes Care, followed by a detailed endorsement of the latter’s benefits for diabetes management.
HUL argued that this comparative advertising crossed the line into disparagement by creating a misleading impression that Horlicks Diabetes Plus was inferior and ineffective. HUL emphasized that its product, specifically formulated for blood sugar management, contained high fiber and essential nutrients, and that it had gained a significant market share since its launch. The company further contended that Abbott’s advertisement, circulated widely among pharmacists and healthcare professionals through WhatsApp groups, would not only mislead consumers but also damage HUL’s reputation and goodwill within the healthcare community.
In its suit, HUL also raised claims of trademark and copyright infringement, asserting that Abbott’s use of blurred visuals showing Horlicks Diabetes Plus packaging in the advertisement was an unauthorized exploitation of their registered intellectual property. HUL further presented evidence of the deliberate use of its product’s trade dress in a manner meant to cast it as inferior, arguing that this portrayal was both deceptive and harmful to its brand image.
Court’s Conclusion on Disparagement
The court, after reviewing the advertisement and the evidence provided, agreed that the advertisement was likely to mislead and disparage Horlicks Diabetes Plus. It found that HUL had established a strong prima facie case for interim relief, noting that the intent, manner, and message of the advertisement suggested that it was aimed at undermining HUL’s product in the eyes of consumers and healthcare professionals alike. The court emphasized that while businesses are entitled to highlight the strengths of their products, they cannot do so by unfairly maligning a competitor’s offerings.
Based on its findings, the court issued an interim injunction restraining Abbott Laboratories from continuing to circulate or broadcast the advertisement. Additionally, the court directed Abbott to recall and remove the advertisement from all platforms and cease any further dissemination through WhatsApp or other channels. The court recognized that if the advertisement remained in circulation, it would cause irreparable harm to HUL’s brand reputation and market standing.
Comparative Advertising and Disparagement
The paras from the case that cite principles relating to comparative advertising and disparagement read as follows:
“20. It is a settled law that a tradesman is entitled to declare his goods to be the best in the world or to say that his product is better than his competitor’s, however, while doing so he cannot directly or indirectly say that the goods of his competitors are bad or inferior and if he does so then he really slanders the goods of his competitors and defames his competitors and their goods which is not permissible. Further, it is equally well settled that to decide the question of disparagement, three factors are crucial viz. (i) Intent of the commercial; (ii) Manner of the commercial; and (iii) storyline of the commercial and the message sought to be conveyed by the commercial.”
…
“24. As laid down by a Division Bench of this Court in USV Private Limited (supra), an advertiser of a product has full freedom to talk about the good aspects of its product and use exaggerations or simple truth to catch the eyes of the consumer. However, there is also caution which the advertiser needs to adhere to in order to ensure that in the process, it does not ridicule or disrepute the other products in the same category, which in the present case I am of the prima facie view, the Defendant Nos. 1 and 2 have clearly done so.”
Citation: Hindustan Unilever Limited v. Abbott Laboratories & Ors., Interim Application (L) No. 27529 of 2024 in Commercial IPR Suit (L) No. 27527 of 2024 (H.C. Bombay Sept. 5, 2024). Available at: http://indiankanoon.org/doc/6575090/, Visited on: 05/10/2024.
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