By, Sayesha Battacharya

At a time when health organizations across the world have suggested washing hands with soap and water as one of the probable remedies to prevent contact and spread of COVID-19, Dettol’s makers (a.k.a. Reckitt Benckiser) came up with an advertisement depicting soap bars to be ineffective against the world dreaded virus. Hindustan Unilever Limited (“HUL”), the makers of the tandurusti generating Lifebuoy soaps, reacted to this advertisement by taking Reckitt to the Bombay High Court[1], and contending that Reckitt was disparaging the Lifebuoy soap bar and the entire class of soap bars through this advertisement, as also infringing HUL’s trademark rights. What seems to be another dispute in the list of Reckitt v. HUL Intellectual Property (“IP”) battles, has also turned out to be India’s first Covid-19 related IP dispute.

The Dettol Handwash v. The Lifebuoy Soap

HUL came across Reckitt’s TV commercial promoting its Dettol liquid handwash, which portrayed that soap bars/cakes are not as effective as a liquid handwash for achieving protection against germs. HUL filed a complaint against Reckitt before the Bombay High Court seeking restraint on the broadcasting of the said advertisement and damages of Rs. 1 Crore, for disparaging HUL’s Lifebuoy soap bars, falsely propagating that soap bars are not useful and creating a scare amongst the public.

HUL claimed that the Dettol advertisement disparaged the registered red- coloured Lifebuoy soap, by showcasing that a soap with the same shape, configuration and colour could not work as well on germs as a Dettol liquid handwash could. HUL further claimed that Reckitt also outrightly copied HUL’s similar advertisement of an ill child being examined by a doctor and the doctor advising the child’s mother on the benefits of washing hands with Lifebuoy soap.

HUL asserted that the World Health Organization guidelines clearly envisage the importance of using soap and water for killing the virus, while the Dettol ad creates a false scare that soap bars/cakes are ineffective, by maligning the market leader in the soaps category. HUL also contended that since the beginning of 2020, HUL has been spreading awareness about the COVID-19 virus and has also indicated to the general public that any soap, including Lifebuoy, Lux, Dettol, Santoor or Godrej No. 1, is enough for killing the virus through hand washing.

Reckitt opposed HUL’s pleas and submitted that HUL could not prove that the soap shown in the advertisement is their product Lifebuoy and therefore there was no case of disparagement and/or infringement.

Reckitt v. HUL – The never-ending advertising wars

This is not the first time that Reckitt and HUL have locked horns over issues of disparaging advertisement and trademark infringement. In one of the cases, HUL aired a commercial wherein a child was shown to be sick due to the alleged use of Dettol as an antiseptic liquid in bathing water, while at the same time advertising HUL’s Lifebuoy soap. The Delhi High Court was pleased to grant an ad-interim injunction against the telecast of the advertisement.[2]

In another matter before the Delhi High Court, Reckitt raised allegations of disparagement against HUL’s advertisement of Vim Liquid, which referred to the Dettol Healthy Kitchen cleaner as a “Harsh Antiseptic” and even raised the question – “An Antiseptic is for cleaning wounds and floors. Would you use it to clean the utensils your family eats from?”. According to Reckitt, HUL was using the advertisement to misrepresent to consumers that the Dettol antiseptic and Dettol Healthy Kitchen cleaner have the same ingredients, and thus the Dettol Kitchen cleaner is way too harsh to be used in the kitchen. The Delhi High Court again passed an order allowing interim injunction against the said advertisement.[3]

What happens next?

The new matter has been heard by a single-judge Bombay High Court bench of Hon’ble Justice Mr K R Sriram. Before the suit could venture into substantial claims and averments, Reckitt agreed to suspend the use of the impugned ad from 12 PM March 22, 2020, to April 21, 2020, for a period of one month. The matter was then adjourned for hearing on April 20, 2020. With the future functioning of the Indian courts in limbo, it is quite difficult to predict what will be the final result of this case.

With multiple similar matters having been fought by Reckitt and HUL, there are no new players to this kind of a dispute. However, what makes this matter a little different is the context within which the Reckitt ad was telecasted and how it could have had possible effects on the health directions being circulated in the present times. But since the ad is no longer available for viewing, we can only wait for the eventual outcome of this case to understand its possible fallouts.

[1] Hindustan Unilever Limited v. Reckitt Benckiser (India) Pvt Ltd, Interim Application No. 1 of 2020 in Comm IP Suit (L) No. 300 of 2020.

[2] Reckitt Benckiser (India) Ltd. v. Hindustan Unilever Ltd., 2013 (55) PTC 126 (Del).

[3] Reckitt Benckiser (India) Ltd. v. Hindustan Unilever Ltd., 2013 (55) PTC 156 (Del).