'Fair and Handsome' ad does not disparage 'Fair & Lovely', rules HC

The Delhi High Court has held that the television advertisement of Emami's fairness cream for men does not disparage Hindustan Unilever's 'Fair & Lovely' cream.

Justice Jayant Nath said prima facie it cannot be concluded that Emami's TV commercial seeks to slander the goods of Hindustan Unilever Ltd (HUL).

"I conclude that there is no merit in the contention of the senior counsel for the plaintiff (HUL). In my opinion, over all the commercial advertisement does not leave an impression that in any manner disparages the product of the plaintiff. It cannot prima facie be concluded that the said TV commercial seeks to slander the goods of the plaintiff," the judge said.

The court passed the order on an application by HUL seeking to restrain Emami from telecasting one of its commercials for the product 'Fair and Handsome', which allegedly disparaged the goodwill and reputation of HUL's product 'Fair & Lovely'.

The interim application was filed in a pending suit of HUL of trademark infringement, disparagement and unfair trade practices allegedly by Emami.

The court listed the main suit for hearing on July 11.

It also said the cream shown in the TV commercial does not resemble HUL's product.

"In these facts and circumstances, the plaintiff now cannot complain about the TV commercial. The contentions of the plaintiff prima facie have no merits," the court said.

Regarding HUL's arguments on disparagement, the court said prima facie there were no merits.

"The TV commercial no doubt seems to make fun of a male using a ladies cream. Can it be said that this advertisement on account of the said dialogue stated is false or misleading or unfair or deceptive? Does it amount to generic disparagement? The answer is in the negative.

"In my view, the plaintiff is being over sensitive on the story line of the TV commercial. The defendant had enough room to play around for making the advertisement. In view of the literature that has been posted on its own website by the plaintiff, it also cannot be said that prima facie the statements made in the advertisement regarding using of women's cream by men is false," the court said.

HUL had submitted that the ingredient 'niacinamide', used in its product, works in a similar manner on various skins, including men and women, with variable degree of efficiency.

It is common for male consumer to use fairness products available in the market without insisting for the products designed specifically for men and a large number of male consumers are using fairness products designed for men as well as for women skin, it claimed.

To specifically target the male population, in 2006, HUL launched its product 'Fair & Lovely Men', which was later renamed as 'Men's Fair & Lovely'.

HUL claimed that Emami, in its advertisement, makes a false claim that 'Fair & Lovely' was "rubbish and inefficacious" and its use was restricted only to women.

It also objected to the colour combination of the tube shown in the advertisement, that is pink and white, as HUL's product is also of the similar colour.

"This is an attempt to demean, diminish and injure the business of the plaintiff (HUL) while at the same time, seek to expand the business of the defendant (Emami)," it said.

Defending its advertisement, Emami said the intention behind the advertisement was to inform male consumers that the fairness cream used by female consumers was not effective on their skin, as the texture of male skin was completely different.

It said there was not a whisper regarding HUL's product and also comparison or denigration as alleged.

The court noted that Emami has now changed the colour of the tube shown in the advertisement to white, without a dual face logo, which was materially different from HUL's product.