Patanjali and the Pirates of Perfidy

Let’s start today with a quick game. Take a look at the image below for just one second, not more.

Now, if we were to ask you what brand came to mind first, there is a good chance the answer would be “Maggi Noodles”. The image, as you’ll see if you spend more than a second, shows a packet of Patanjali Noodles.  

This is what a pack of Maggi Noodles actually looks like:

Here is a close-up of both the products side by side:

Notice the similarities—everything from the choice of the colours to the choice of imagery is uncannily similar, yet just different enough to be distinct (say, keep the characteristic red and yellow, but invert). Must be an accident, right?

Perhaps not.

Let’s play the game again. Take a look at this image for one second, just one second, and tell us what comes to mind.

Cadbury’s 5 Star, anyone? It’s obviously not—this is a caramel chocolate from Patanjali called Super Star—but the name and the visual cues immediately bring to mind 5 Star. Here’s an actual one for comparison:

A coincidence? If once is an accident and twice is a coincidence, what would you say if it happens three times? Five times? Ten times? Here, take a look.

Patanjali oats on the left, Kellogg’s Heart to Heart brand of oats on the right.

Patanjali biscuits on the left, Britannia’s Good Day biscuits on the right.

Patanjali’s basmati rice on the left, Daawat’s on the right.

Ditto with brown rice from the same two brands.

Coming back to Cadbury again, Patanjali’s got Power Vita (now, what does that sound like?), a brown powder that’s a “herbal health and brain tonic”, with a chocolate flavour.

The similarities don’t stop at just food items. Here is Patanjali’s Kesh Kanti hair oil.

Now compare this with Emami’s Kesh King hair oil below.

And Patanjali’s Green Flush toilet cleaner with Harpic (see the labels).

While we are going to stop now, rest assured that this is by no means the entire set—there are several more examples where Patanjali products are eerily reminiscent of other brands.

Clearly, there is a zero percent chance that this is a coincidence. So what gives?

The highest form of flattery

One possibility is that it’s just a case of permissionless inspiration. Is this a case of the product and marketing folks at Patanjali being either lazy or unimaginative? This is not unheard of in India, and might have been plausible had Patanjali been just another mom-and-pop hole-in-the-wall retailer. But on the contrary, buoyed by the nationalist exhortations of Baba Ramdev, its charismatic founder and talisman, Patanjali has emerged as a consumer goods giant over the course of just a few years.

The corporate entity, Patanjali Ayurved Ltd, was just a small pharmacy five years back but is now a veritable behemoth in the fast-moving consumer goods (FMCG) industry. In 2016-17, it crossed Rs 10,000 crore ($1.38 billion) in annual sales—this figure is nearly a third of the comparable top-line figure of India’s largest consumer goods company (Hindustan Unilever).

The stakes are high not just on a broad aggregate level but also at an individual product level.

Take Kesh Kanti for instance. You might be tempted to think that an ayurvedic hair oil is a niche product, but you would be wrong. Kesh Kanti brings in nearly Rs 1,000 crore ($138 million) for Patanjali each year. If that number sounds big in itself, it might be worth keeping in mind the fact that the overall personal care market segment (soaps,  shampoos, skin care and so on) in India is over Rs 30,000 crore ($4.14 billion)—so there is a lot of headroom for the likes of Kesh Kanti to challenge leaders like Hindustan Unilever.

Given the high stakes involved and Patanjali’s now gargantuan scale and meteoric trajectory, it is quite clear that these branding similarities are part of a deliberate—and carefully calculated—marketing strategy.

Which brings us to the point where we need to ask two questions.

First, does this strategy make sense from a marketing and branding perspective? Doesn’t Patanjali come across as a bit of a copycat?

Brand design expert Harish Bijoor doesn’t think so. “One way of looking at it is that mimicking the market leader is the highest form of flattery. However, in the case of Patanjali, I would say that it is a clear strategy that’s in place,” he says.

Additionally, according to Bijoor, the fact is that there are some design elements or styles common to a certain category of product. For example, a Marie biscuit from any brand will have the same sort of packaging and colours—it’s what buyers expect now.

He adds, “Customers have grown accustomed to a certain semiotic language of branding, the shape of the package, the colour of the package. A red mug on a sachet has come to represent coffee, that’s Nescafe. A white tin is baby food.” It’s only natural, he says, for a new entrant to clothe its products in familiar colours.  

“Patanjali mimics the market leaders in packaging, but militates against them in advertising”

Harish Bijoor, brand strategy consultant

But Patanjali goes a step beyond that, more closely aping well-established brands in naming and/or outward appearance. Sure, it’s something a newcomer might do, but wouldn’t a firm with ambitions of ruling the market want to set itself apart?

Bijoor points out that Patanjali is different from every other arriviste new kid on the block in one crucial aspect. “What Patanjali has done is that, on the one hand, it mimics the market leaders in packaging, but on the other hand, it militates against them in advertising.”

He’s alluding to Patanjali’s desi/swadeshi marketing peg—the revisionist retelling of Ayurveda’s imagined glory in days long gone. Pit this against foreign companies with their modern products. The irony, of course, is that the likes of Hindustan Unilever have operated in India as a local company for more than 85 years.

But as they say in marketing, perception is reality—and Patanjali has cleverly come up with a marketing message that might not be strictly true but has resonated enough with its target audience to strike a chord worth thousands of crores.

It might also be worth pointing out that the company follows a clever stratagem of selectively highlighting or under-emphasising the “Patanjali” brand across its portfolio of products. With most of its ayurvedic supplements and more “traditional” products, the Patanjali brand is front and centre. But for many of its other offerings, prominent display is given to generic terms like “atta noodles” or “butter cookies”, while the Patanjali brand name sits quietly in a corner.

See the image below to witness how this plays out in an actual store:

Come for the Ayurveda, stay for the noodles, biscuits et al.

Which brings us to the second question—is this even legal? Short answer: yep, pretty much.

The long answer

Let’s start by going back to Bijoor’s point about a common semiotic language of branding. While that is undoubtedly true, it is also a fact that the large FMCG companies have an unspoken Omerta code on what is allowed and what isn’t. A tacit quid-pro-quo that spells out what you can “borrow” from one product and, in turn, what you allow others to “borrow” from your own. Moreover, most of the time, they try to differentiate their products; set themselves apart from the competition.

And coming to Patanjali again, in a strictly legal sense, there’s not much competitors can accuse it of in a court of law, even if they were so disposed. This is not to say, however, that there have been no legal claims made against Patanjali.

In March 2016, rival consumer goods company Emami took the company to court claiming that Patanjali’s Kesh Kanti hair oil was very similar to its own Kesh King brand. Both in name and also in the font and presentation of the brand. And that Patanjali had also copied the “unique, aesthetic and innovative shape” of the bottle the hair oil comes in.

The Calcutta High Court found merit in Emami’s claims, and issued a preliminary injunction against Patanjali. But in May, both sides settled out of court. Patanjali still has a similar looking Kesh Kanti hair oil bottle listed on its website.

Emami declined to comment on why the matter was settled out of court and what the terms of the settlement were. Patanjali did not respond to an email seeking comment, sent on 26 September.

The Ken spoke to IP rights lawyer Vaibhav Vutts to get an expert take on the issue.

According to Vutts, a company has a strong case to claim an infringement or violation of its intellectual property only when there’s a particularly blatant rip-off—a one-to-one copy of name, design, brand, look and feel.

But generally, the issue is more complex.

For one, every product category has certain terms or types of imagery that are fairly generic to the category. You can’t very well complain that someone is copying your noodles’ packaging just because both your packets have pictures of noodles. Ditto for words or phrases such as “atta noodles”.  

Emami had filed against Patanjali on two counts—one that the name “Kesh Kanti” is very similar to “Kesh King”, and second that the bottle design had been copied. It was, Vutts points out, the second claim on which the court had granted a preliminary injunction.

Vutts says that Emami’s trademark complaint would not have held water, because the word kesh—Hindi for “hair”—can be considered generic or merely descriptive when it comes to hair oil. Design is what they would have had a chance with, but even there it’s not an open and shut case. In simple terms, what the court saw was that on the face of it—prima facie, in legalese—Emami had a case worth hearing out. If the two companies had decided to continue their fight, Emami would have had to prove that the shape of its bottle was unique and distinctive enough to merit protection.

“Most companies, including Patanjali, do a proper brand study before launching”

Vaibhav Vutts, founder partner, Vutts & Associates

To prove that there is some sort of IP rights infringement, the key requirement, Vutts says, is for a company to “establish reputation”. This is an onerous exercise that a company has to go through to prove that a particular design or colour combination or shape is so strongly associated with its product that customers would immediately assume something with a similar design is that very same product. Even KitKat, owned by Nestle, has struggled for years to get the iconic four-finger shape of its chocolate wafers recognised as unique—in many countries, it’s still not a protected design.

What’s more, if a company comes out with a product that has packaging very similar to another product, but there are a few key differences in terms of design elements, then there’s no question of a rights violation at all. Take a look at Patanjali biscuits versus Good Day biscuits again.

Very similar, you would think—from the shape of the package to the colours to the imagery. But if you consider it more carefully, the shape is that of a generic biscuit packet, and the images of biscuits are generic too. Further, Patanjali doesn’t have the Britannia or Good Day logos or anything remotely similar; its own logo is positioned very differently; and there’s an additional design element on the left, with its “0% maida” assertion. Legally speaking, there are no grounds for calling Patanjali’s design an infringement of Britannia/Good Day’s design.

“Most companies, including Patanjali, do a proper brand study before launching, so you will not end up seeing a lot of big companies fighting against each other. They will encroach into each other’s territory but not fight with each other,” says Vutts. They do often enter disputes over advertising, but those, he says, are just tactical battles—a way of saying that “my product is better than your product”.

(Many of these disputes are over one company making an ad that pokes fun at or “disparages” another company’s ads or products. They’re quite common, and Patanjali too is no stranger to this, with cases filed against its ads by the likes of Dabur, Reckitt Benckiser and Hindustan Unilever. But that’s another story altogether.)

“Even if they do get into [IP violations] by chance, then they are quick to settle it, they will not let it come out into the market. And Patanjali is following exactly the same model. There’s absolutely nothing wrong in their branding strategy, per se,” adds Vutts.

And indeed, none of the companies whose products we saw above—the likes of Nestle, Dabur, Britannia and Mondelez—seem to have taken offence at Patanjali’s apparent mimicry. None of the major FMCG companies offered comments when The Ken reached out to them for this piece.

Beyond the narrow prism of legal recourse, there is an aspect of a brand’s and a company’s “soft power”.

Which brings us to an interesting situation with Super Star chocolate, Patanjali’s 5 Star clone. PriyaGold (Surya Food Agro Ltd), a home-grown maker of biscuits and other snacks that’s over two decades old, had a chocolate by the same name.

Not only had the company applied for a trademark for “SuperStar”, it had also signed up Bollywood celebrity Katrina Kaif in March this year to feature in a rather terrible commercial featuring the product.

When The Ken contacted PriyaGold’s office, we were told the company had mysteriously stopped selling the chocolate about two months ago. Requests for comment over the phone and on email received no response. A silent ode to Patanjali’s and Baba Ramdev’s soft influence over the powers that be? Or maybe the chocolate just wasn’t doing well and PriyaGold decided to shelve it, just months after (presumably) paying a hefty sum for a celebrity brand ambassador?

We may never know. But the PriyaGold website does have a new star—a “Choco Caramel Nouga” bar called Hunk; the packaging is a different colour, but the chocolate bar on display looks exactly like SuperStar (which was also “Choco Caramel Nouga”). And yes, there’s a picture of Kaif eating it.  

To give Patanjali its due, what looks at first glance like a brazen stratagem of mimicking the products of other companies seems to be working out just fine. With its recently announced entry into dairy products and apparel, there seem to be no limits to Patanjali’s FMCG ambitions—having free rein to wage an orthogonal battle in the market must be a wonderful thing.

We decided to procure a few Patanjali snacks—soya sticks, crackers and a chocolate bar—for research (no, really). While picking up competing products for comparison from a kirana-store-cum-tea-stall near The Ken’s Delhi office, the man running the shop noticed our Patanjali bar.

Yeh kya hai? (What is that?)”

A chocolate from Patanjali, called Super Star.

Patanjali toh aaj kal sab kuch bana raha hai. (These days, Patanjali’s making everything.)”

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