HUL's Rin versus Tide TV commercial may be headed for the courts. If the case does wind up in litigation, it would be interesting to see how Indian courts react to comparative advertising,  says trade mark attorney, Navpreet Panjrath

Chance is always powerful. "Let your hook be always cast; in the pool where you least expect it, there will be a fish". It appears that FMCG major HUL has incorporated Ovid's quote in its advertising strategy.

The tussle between the big two  - P&G and HUL - has been causing ripples in the industry since the launch of its Rin versus Tide comparative advertisement.

HUL has been under pressure since quite some time due to the launch of similar products backed by aggressive advertisement by its competitors.  The latest conflict appears to have started when P&G introduced its brand Tide washing powder (in orange packaging), which ate into the sales of HUL's Rin washing powder.

Observers say HUL tried restructuring its brand portfolio and reduced prices so as to attract middle-class consumers.

In order to retain its market share, a couple of months ago P&G introduced a low-cost detergent, Tide Natural, claiming in its ads that it provided "whiteness with special fragrance".  The product was positioned against HUL's Rin and Wheel.

HUL retaliated with an aggressive two-pronged strategy. 

• First, it challenged Tide's claim of whiteness with special fragrance in the Chennai High Court, which passed an order on 25 February 2010 (CS 189/2010), directing P&G to modify the advertisement since it was not really able to substantiate the claim of "whiteness with special fragrance". The court has granted an injunction and directed P&G to respond within three weeks.
  
• Three days later on 28 February, HUL launched an aggressive TV campaign aired during prime time, showing two mothers waiting at a bus stop for their children returning from the school. While waiting together they glance at each other's shopping baskets.
  
  One woman's basket has a packet of Rin detergent powder, while the other has a packet of Tide Naturals. 
  
  The Tide lady boasts confidently about Tide's khushboo aur safedi bhi (fragrance combined with whiteness) the theme on which the Tide Naturals campaign was based. The Rin lady does not show any reaction but has a beam on her face. Thereafter, the school bus stops and drops off the two children. 
  
  The child of the woman carrying Tide is wearing a visibly dull shirt, while behind him a boy comes out wearing a spotless white  shirt, who runs across the shocked Tide lady towards the mother carrying the Rin packet. 
  
  Making the advertisement more aggressive, the boy asks his mother, "Aunty chaunk kyun gayi?" ("chaunk" or startle has been used  in P&G's earlier punch line) as the ad concludes with a voice-over that Rin is 'behtar' than  Tide, when it comes to whiteness and at a  chaukanewala price of Rs25.

Contested issue
This particular advertisement campaign has provoked debate on comparative advertising.  The moot issue is whether HUL's explicit TV commercial of Rin being superior to P&G's Tide amounts to disparagement or is a permitted form of free speech protected under ''commercial speech'' as part of freedom of speech under Article 19(1)(a) of the Constitution.

Among different legal tools that govern comparative advertising, the Monopolies of Restrictive Trade Practices, 1984, (MRTP Act) and Trade Marks Act, 1999, (TMA) provide the basic structure for such advertising. The Trade Marks Act, 1999, has incorporated provisions relating to comparative advertising under Sections 29(8) and 30(1).

Comparative advertising is permissible subject to certain limitations as to unfair trade practices. The latter is defined under Section 36A of the Monopolies and Restrictive Trade Practices, 1969. Though the Act now stands repealed, its provisions continue to stand.

Section 29 (8) of the Trade Marks Act, 1999 provides certain limitations to comparative advertising, according to which advertising infringes on a trade mark when it:

• takes unfair advantage and is contrary to honest practices in industrial or commercial matters; or
• is detrimental to its distinctive character; or
• is against the reputation of the trade mark.

Section 30 (1) of the Act read as: ''Nothing in Section 29 shall be preventing the use of registered trademarks by any person with the  purposes of identifying goods or services as those of the proprietor, provided the use:

• is in accordance with the honest practices in industrial or commercial matters, and
•  is not such as to take unfair advantage of or to be detrimental to the distinctive character or repute of the trade mark.''

Section 36A of the MRTP Act lists several actions to be an 'unfair trade practice'. For instance, Section 36A (1)(x) reads: ''36A… 'unfair trade practice' means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provisions of any services, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:-

(1) the practice of making any statement, whether orally or in writing or by visible representation, which … (x) gives false or misleading facts disparaging the goods, services or trade of another person.''

ASCI's stand
The Advertising Standards Council of India has also laid down a specific code of conduct for self-regulation in advertising, with the sole aim of regulating the content of advertisements. Chapter 1 of the Standards of Conduct not only deals with the honesty of representation, but also deals with misleading advertisements as well. It lays down the following criterion:

1. Advertisements must be truthful. All descriptions, claims and comparisons which relate to matters of objectively ascertainable fact should be capable of substantiation. Advertisers and advertising agencies are required to produce such substantiation as and when called upon to do so by The Advertising Standards Council of India.
   
2. Where advertising claims are expressly stated to be based on or supported by independent research or assessment, the source and date of this should be indicated in the advertisement.
   
3. Advertisements shall not, without permission from the person, firm or institution under reference, contain any reference to such person, firm or institution which confers an unjustified advantage on the product advertised or tends to bring the person, firm or institution into ridicule or disrepute. If and when required to do so by the Advertising Standards Council of India, the advertiser and the advertising agency shall produce explicit permission from the person, firm or institution to which reference is made in the advertisement.
   
4. Advertisements shall neither distort facts nor mislead the consumer by means of implications or omissions. Advertisements shall not contain statements or visual presentation which directly or by implication or by omission or by ambiguity or by exaggeration are likely to mislead the consumer about the product advertised or the advertiser or about any other product or advertiser.
   
5. Advertisements shall not be so framed as to abuse the trust of consumers or exploit their lack of experience or knowledge. No advertisement shall be permitted to contain any claim so exaggerated as to lead to grave or widespread disappointment in the minds of consumers.

There are two debatable issues in this advertisement:

• The advertisement clearly shows a packet of Tide Naturals, which has green packaging and is a cheaper extension of Tide, which orange packaging) whereas the woman in the commercial says 'Tide se kahin behatar safedi de Rin' (Rin gives better whiteness than Tide)- Does this amount to misleading the public as per the Indian Law?
  
• At the end of the advertisement, a line is displayed on the bottom stating that ''this claim is based on laboratory tests done through globally accepted protocols in independent third-party laboratories' and Schematic representation of superior whiteness is based on Whiteness Index test of Rin Vs Tide Naturals as tested by Independent lab" . The challenge is whether the present statement(s) can be substantiated by way of evidence and if yes, whether such tests if conducted by any independent laboratory continue to be the same.

Though P&G might seek a legal remedy, HUL  appears to have enjoyed its share of colorful Holi by taking advantage of the long weekend during which its commercial was aired.

If the case does wind up in litigation, it would be interesting to see how Indian courts react to this form of advertising. 

As a lawyer, my view is that any judgement by a court will be critically important when weighing the prospects of successful trade mark infringement action against comparative advertisements.

It appears that P&G views its rival's latest commercial as a great lie and is acting like a big fish on dry land; it may fret and fling and make a frightful bother, but it cannot hurt you. You have only to keep still, and it will die of itself.

(The author is a Delhi-based trade mark lawyer with intellectual property rights firm, K&S Partners, Gurgaon)

(See: P&G moves HC against HUL; may launch tit-for-tat ad)