The Delhi High Court has restrained Hindustan Unilever (HUL) from conducting marketing or advertising campaigns which compare its ‘Ponds’ products with ‘NIVEA’ products through their sales representatives in various malls in the national capital and Gurugram.
As per reports, Justice Anish Dayal observed that this activity potentially damages NIVEA’s products or business.
Justice Anish Dayal observed, “…this Court is of the opinion that the impugned activity undertaken by 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.”
According to reports, the court passed the order in an interim injunction application filed by Beiersdorf AG, the company manufacturing Nivea products, in its suit against HUL.
The plaintiff claimed a highly distinctive trade dress for its ‘NIVEA’ brand of products written over a blue background, created and developed for its products ‘NIVEA Crème’ in 1925.
As per reports, it was Beiersdorf AG’s case that around 2021, it became aware about HUL conducting marketing activities wherein their sales representatives in various malls in Delhi and Gurgaon were showing a comparison in a blue tub identical to the NIVEA Crème blue tub (used without the sticker) and ‘Ponds Superlight Gel’.
Reports stated that as per the plaintiff, sales representatives of HUL would apply a cream from the “blue tub” on the skin of the walk-in customers on one hand and Ponds product on the other and then would use a magnifying glass in an attempt to assure the customers that the blue tub product left an oily residue on their skin as compared to Ponds Super Light Gel.
Justice Dayal observed that prima facie, the colour blue was certainly associated for years with Beiersdorf AG’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.
The court further stated that there was no reason why HUL could not have used a heavy cream in a different colour tub for the comparison. It also observed that the law relating to advertisements in any form whether print, digital or TVC also extends to in-mall marketing campaigns.
According to reports, the court reasoned that mall marketing campaigns are a method of promotion and marketing of a company’s product to a consumer, in a much more personalised and interactive way.
“At least in an advertisement in print digital, medium or TVC, the assessment is limited to what is seen or heard in the commercial. In an in-mall marketing campaign, the possibilities of imputation, aspersion, implication, overstatement, leading to even a slight disparagement, will be limitless,” the court said.
The court stated in its order, “Defendant, their directors, wholesalers, distributors, partners, proprietors, agents or assignees are restrained from conducting the impugned activity or such similar marketing/advertising activity, comparing plaintiff’s ‘NIVEA’ products (either expressly or by implication or association) and defendant’s products (especially those under the trademark ‘Ponds’), which amount to disparagement or denigration of plaintiff’s products or business.”
