The Delhi High Court issued an order directing Hindustan Unilever Limited (HUL) to cease comparing its Ponds skincare products with those of Nivea in their advertisements. The court found the comparison to be misleading and detrimental to Nivea’s reputation. HUL must comply with the court’s decision, reflecting the importance of truthful advertising practices in the skincare industry.
New Delhi: The Delhi High Court issued an injunction against Hindustan Unilever Limited (HUL) that prevents them from conducting advertising or marketing campaigns that compare their Ponds cream products with NIVEA products. The court found one of HUL’s campaigns, which took place in malls, to be misleading and disparaging. The injunction granted in response to a plea filed by Beiersdorf AG (Nivea), the manufacturer of Nivea products, who filed a lawsuit against HUL.
Justice Anish Dayal, in an order dated May 9, granted Nivea interim relief and prohibited HUL from making disparaging comparisons between Ponds and Nivea products in their advertising campaigns.
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The Court ordered,
“The defendant (HUL), including their directors, wholesalers, distributors, partners, proprietors, agents, or assignees, are restrained from engaging in the questioned activity or similar marketing/advertising activities that compare the plaintiff’s ‘NIVEA’ products (either explicitly or by implication or association) with the defendant’s products (particularly those under the trademark ‘Ponds’), which could disparage or denigrate the plaintiff’s products or business.”
The main lawsuit will be heard on July 24.
According to Beiersdorf AG, HUL‘s sales representatives were unfairly comparing Ponds cream with Nivea products during a marketing campaign for “Ponds Superlight Gel” in various malls in Delhi and Gurgaon. Nivea claimed that HUL’s sales team asked mall-goers to apply the Ponds product on one hand and an unlabelled cream from a blue tub on the other hand. The plaintiff argued that the blue tub resembled Nivea containers, especially since, a similar “Pantone blue colour.”
Furthermore, Nivea informed the court that HUL‘s sales team used a magnifying glass to convince customers that the product from the blue tub left an oily residue on their skin when compared to the Ponds Super Light Gel.
Nivea argued that the comparison made by HUL was misleading, unfair, and impermissible due to the following reasons:
a) The unmarked blue tub used in the comparison was intended to reference Nivea products, as the shade of blue used is commonly associated with Nivea. Although Nivea does not possess any intellectual property rights over that specific colour in India, its rights over the colour have been recognized by the German Patent and Trademark Office.
b) The comparison carried out by HUL was between a “heavy cream” category of Nivea products and a lighter cream or gel-based Ponds product. Nivea contended that the comparison would have been more appropriate if a light or gel-based Nivea product had been compared to the specific Ponds product in question.
The Court acknowledged the prima facie merit in Nivea’s submissions.
The Court stated,
“Prima facie, the colour blue, specifically ‘Pantone 280C,’ has been associated for years with the plaintiff’s product ‘NIVEA’, achieving distinctiveness and popularity. The use of a blue colour tub by the defendant (HUL) in the impugned activity appears to be more than mere coincidence. This seems to be an allusion to the distinctive blue colour traditionally used by the plaintiff.”
The Court remarked,
“HUL had the option to select any other color for their tub in their comparative marketing campaign if their intention was not to disparage or reference Nivea products. The choice of a dark blue tub, which consumers generally associate with NIVEA, suggests otherwise.”
Furthermore, the Court recognized,
“The use of a distinctively blue coloured tub without any labels by the defendant (HUL) borders on deceptive practices, misrepresentation, and by implication, disparagement. The comparison of their lightest product, ‘Ponds Superlight Gel,’ with the plaintiff’s heavier ‘NIVEA Crème’ is fundamentally misleading.”
Additionally, it was noted,
“The decision by HUL to utilize a dark blue tub, typically linked with NIVEA by consumers, further supports this view.”
Lastly, the Court concurred with Nivea‘s assertion that HUL‘s comparative marketing unfair, comparing a heavy cream from Nivea with a gel-based product from Ponds.
The Court emphasized that regulations restraining advertising whether in print, digital formats, or television commercials also apply to marketing initiatives conducted in shopping malls.
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While providing interim protection to Nivea, the Court explained,
“The assessment in traditional advertisements, whether print, digital, or TV, is confined to what is presented in the commercial itself. However, in an in-mall marketing campaign, the potential for insinuations, derogatory implications, exaggerations, and even minor disparagements becomes virtually boundless,”
Representing Beiersdorf AG, which owns Nivea, were Advocates MS Bharath, VS Krishna, Ayush Sharma, and Ashish Sharma.
Appearing for HUL, owner of Ponds, Senior Advocate Chander M Lall and Advocates Pragya Mishra, Shashwat Rakshit, and Ankur Sangal.
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