Delhi HC stops HUL from comparing Ponds and Nivea, following Beiersdorf AG's interim injunction application

The Delhi High Court has prohibited Hindustan Unilever from promoting or advertising its 'Ponds' products in comparison to 'Nivea' products either clearly or through inference or connotation through sales representatives at malls in Delhi and Gurugram, as reported by Live Law.

Justice Anish Dayal remarked that if the actions lead to the belittlement or criticism of the other party's products or business.

Justice Anish Dayal said: “…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.”

The court issued the ruling on a temporary restraining order requested by Beiersdorf AG, the company that produces Nivea products, in their legal case against HUL.

Beiersdorf AG asserted a very unique trade dress for its 'NIVEA' brand of products displayed on a distinct blue background, designed and introduced for its 'NIVEA Crème' products in 1925. The plaintiff argued that in approximately 2021, they discovered that HUL had been engaging in marketing practices where their sales representatives in Delhi and Gurgaon malls were showcasing a cream in a blue tub similar to NIVEA Crème (without the sticker) and 'Ponds Superlight Gel'.

According to the plaintiff, HUL sales representatives would put cream from the "blue tub" on one hand and Ponds product on the other hand of walk-in customers, then use a magnifying glass to show that the blue tub product left more oily residue than Ponds Super Light Gel. Justice Dayal noted that on first impression, the colour blue has long been linked to the plaintiff's product 'NIVEA', which has gained recognition and is widely known.

“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.

It also mentioned that HUL could have easily used a different coloured tub with heavy cream for comparison. The court noted that laws regarding advertising, including puffery and disparagement, apply to all forms of advertisements such as print, digital, and TV commercials, including marketing campaigns within malls. The court explained that in mall marketing campaigns, the focus is on promoting and marketing a company's product to consumers in a 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.

It thus ordered: “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.”