Not All is Fair & Lovely in Trademarks: How Changing Societal Climate May Force Companies to Reconsider their Choices

Hi everyone, this is my presentation/paper for the class. Please click on the link below to download the presentation (which includes audio). I am also including the paper version below for any of you that would prefer to read or would like to read along. Hope you enjoy it!

Raunaq Saini – IP Presentation

Not All is Fair & Lovely in Trademarks: How Changing Societal Climate May Force Companies to Reconsider their Choices

Hi everyone, I decided to do my project on what was formerly known as Fair & lovely, which is a really popular skin whitening cream sold in India. I chose this topic because, for one, I just think it’s a really interesting story, but also because it really illustrates how careful businesses have to be in making trademark choices.

Growing up in India for 13 years, while I remained oblivious to the experience of racism, this was not the case when it came to colourism. In fact, I witnessed many point out how my younger sister was the unfortunate sibling of us two for having a slightly darker skin colour than mine. Many suggested that she try Fair & Lovely to tackle the issue. Pictured here on the right are my sister and I at the Taj Mahal probably some 15 years ago. As you can tell, we are practically the same skin colour – which I feel only goes to show just how much skin colour is scrutinized in India and why Fair & Lovely has been such a success.

So what is Fair & Lovely? Fair & Lovely (now known as Glow & Lovely), is a product by Unilever’s Indian subsidiary Hindustan Unilever Limited (HUL). It is India’s largest selling skin lightening cream with $317 million USD in annual revenue.[1] The cream has been a hit in India since the 1970s with millions of tubes of the cream being sold to teenagers and young women every year.[2] In 2006, HUL launched a men’s line of the same product, called “Fair and Lovely, Men.”[3]

This product really has mastered the art of exploiting a society where fair skin has been associated with beauty.[4] The product has often been endorsed by Bollywood actors and actresses through advertisements, where it was been linked with better chances of finding love or a glamorous job as result of fairer skin.[5]

In 2020, in the wake of the Black Lives Matter movement[6] and in response to the death of George Floyd, many products and brands came under fire.[7] As a result of building pressure, many companies made decisions to discontinue certain products. For example, Johnson and Johnson announced that it would no longer produce or sell its skin-whitening creams in Asia and the Middle East, while PepsiCo announced it would change the name and brand image of Aunt Jemima pancake mix and syrup.[8] The statement from Johnson and Johnson only increased the pressure on Unilever and HUL, who were already experiencing extensive criticism for promoting colourism through their product Fair & Lovely.[9]

Eventually, Unilever did attempt to deal with the issue. It announced that it recognized that use of the word fair suggested a singular ideal of beauty and claimed to be working to make the skin care portfolio more inclusive.[10] In June 2020, HUL filed an application to trademark a logo for various products under the new brand name “Glow & Lovely.[11]”

Similarly, the men’s line also went through a rebranding process and was named “Glow & Handsome.” Many criticized HUL’s move to rename the product line instead of discontinuing it altogether. They argued that no matter what the company called it, it still remained a fairness cream.[12] However, given the kind of revenue that fairness creams generate in the Indian market, some have felt the company’s choice to attempt a rebranding exercise rather than a discontinuation may be justified.[13]

Unfortunately for HUL, the change in trademark did not go as smoothly as they may have hoped. After they announced that they would be renaming their products “Glow & Lovely” and “Glow & Handsome”, one of their competitors, Emami Ltd. (“Emami”), threatened legal action against them. At it turned out, Emami had reportedly launched the brand “Emami Glow & Handsome” a week earlier by making the necessary filings.[14] It’s worth noting the Emami men’s line was previously called “Fair and Handsome.”

The two companies ended up in court over their dispute and both filed suits and applications, really illustrating the high stakes situation at hand.[15] The last order by court from 2020 seems to have been that HUL prima facie appeared to be a prior adopter and user of the mark “Glow & Handsome.” While HUL had already launched its goods in the market with the trademark, Emami was still at the stage of adopting a process for launching.[16] As a result, a temporary injunction was granted to HUL to restrain Emami from using the mark “Glow & Handsome.”[17] However, the matter is nowhere close to an end. While HUL seems to have been victorious as of now, it is difficult to say what the outcome may be as litigation progresses and this trademark war between two organizations continues.

I chose this example because I thought it brings up two really interesting points. First, it is interesting to examine how organizations may make use of IP tactics to remain socially acceptable. This case illustrates that a change in trademark, while not a perfect tool, is none the less a tool that companies may use in rebranding and saving products in these kinds of situations. Secondly, it’s also worth considering how the use of these tactics may not be easy in highly competitive markets. Clearly, competing organizations may find themselves making similar strategic choices to survive from being boycotted in a rapidly changing social climate, which can then lead to legal battles over similar trademarks. I think this case really brings to question the extent to which organizations need be proactive in thinking about their trademark choices. Arguably, there is a need for companies to become a lot more conscious of the social climate in which they are operating. It may be worth their time to try to secure the most appropriate alternate trademarks for controversial products, before these products actually come under fire. After all, to ensure business success in the long run, damage control is never going to as effective as preventative measure.

Thank you for watching/reading my presentation/paper and please let me know if you have any questions through the comments section. You will also find the sources I used on the last slide/below in case you are interested in reading more about the example and case I have used. Thanks again!

[1] https://www.bbc.com/news/world-asia-india-53182169 [BBC].

[2] Ibid.

[3] https://www.indiatvnews.com/business/news-emami-high-court-glow-and-handsome-643120#:~:text=In%202006%20it%20launched%20%60Fair,to%20do%20so%2C%20it%20claimed

[4] BBC, supra note 1.

[5] Ibid.

[6] https://www.nbcnews.com/news/asian-america/skin-lightening-cream-fair-lovely-change-name-after-backlash-n1232124 [NBC].

[7] BBC, supra note 1.

[8] NBC, supra note 6.

[9] BBC, supra note 1.

[10] BBC, supra note 1.

[11] NBC, supra note 6.

[12] BBC, supra note 1.