Bombay High Court
Hindustan Unilever Limited And Anr vs Unilever Plc on 19 January, 2021
Author: B.P. Colabawalla
Bench: B.P. Colabawalla
(NOB)IAL808.21_IA1.21_COMIPL805.21.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
Digitally
signed by
Dhanappa
Dhanappa I. Koshti
I. Koshti Date:
INTERIM APPLICATION (L) NO. 808 OF 2021
2021.01.19
18:38:47
+0530
IN
COMMERCIAL IP SUIT (L) NO. 805 OF 2021
Hindustan Unilever Limited & Anr. ... Applicants/
Plaintiffs
In the matter between:
Hindustan Unilever Limited & Anr. ... Plaintiffs
Vs
USV Private Limited ... Defendant
WITH
INTERIM APPLICATION (L) NO. 959 OF 2021
IN
COMMERCIAL IP SUIT (L) NO. 805 OF 2021
USV Private Limited ... Applicant/
Defendant.
In the matter between:
1 Hindustan Unilever Limited & Anr. ...Plaintiffs
Vs
SR Pasha, Sr PS Page 1 of 41
(NOB)IAL808.21_IA1.21_COMIPL805.21.docx
USV Private Limited ... Defendant
Mr. Virag Tulzapurkar, Sr. Counsel a/w Mr. Hiren Kamod, Mr. Nishad
Nadkarni, Ms. Khushboo Jhunjhunwala, and Mr. Prem Khullar i/b Khaitan
& Co. for the Plaintiffs and for the Applicants in I.A. (Lodg) No.808 of 2021.
Mr. Venkatesh Dhond, senior counsel a/w Mr. Rohan Kadam and Mr. Rishi
Murarka i/b Bimal Rajshekhar for the Defendant and for the Applicant in
I.A. (Lodg) No.959 of 2021.
CORAM : B.P. COLABAWALLA, J.
TUESDAY, 19TH JANUARY, 2021 P.C. :
1. At the outset, I must state that the above Interim Application (Lodg) No.808 of 2021 was moved ex-parte on 11th January, 2021, and I had granted ad-interim relief in terms of prayer clause (a) of the Interim Application. Thereafter, Interim Application (Lodg) No.959 of 2021 was moved before me by the defendant on 12th January, 2021, wherein it was pointed out that the defendants had filed a Caveat in this Court and despite the Caveat, an application was moved for ex-parte SR Pasha, Sr PS Page 2 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx ad-interim reliefs. This could not have been done and hence the order passed on 11th January, 2021, be recalled/vacated.
2. Mr. Tulzapurkar, the learned senior counsel appearing on behalf of the plaintiffs, fairly stated before the Court that it is factually correct that a Caveat was served on the plaintiffs. However, because of the stringent protocols being followed due to the Covid-19 Pandemic, the packet containing the Caveat was not opened as the same did not reflect that it was from any advocate. Since the packet was not opened, the plaintiff was under the bona fide belief that no Caveat was filed and it is in these circumstances that an ex-
parte ad-interim application was made before the Court on 11th January, 2021. He submitted that considering that there is a Caveat on record, the ex-parte order dated 11th January, 2021, be set aside and the matter be heard afresh. In these circumstances, the plaintiff and the defendant were heard afresh on 12th January, 2021 and 13th January, 2021 and kept for passing orders today. It is needless to clarify that the order dated 11th January, 2021 stands recalled solely on the ground that no notice was served on the defendant though they had SR Pasha, Sr PS Page 3 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx filed a Caveat. Hence, Interim Application (Lodg) No.959 of 2021 filed by the defendant abovenamed, is accordingly disposed of.
3. Interim Application (Lodg) No.808 of 2021 (the present Interim Application) seeks to restrain the defendant, its parent company, group companies, subsidiaries etc., from in any manner using, telecasting or broadcasting or otherwise howsoever communicating to the public or publishing the impugned advertisement campaign, including without limitation the TV commercials (TVCs), impugned banners, impugned warning, impugned hoardings or newspaper ads or any material comprising all or any part of the above. This relief is sought on the basis that the impugned advertising campaign of the defendant is malicious, misleading and denigrating the well-known brands / products of the plaintiffs, namely, LUX, DOVE and PEARS, which are all bathing soaps.
4. Mr. Tulzapurkar, the learned senior counsel appearing on behalf of the plaintiffs, submitted that the plaintiffs are amongst the most well-known and reputed SR Pasha, Sr PS Page 4 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx companies in the business of Fast Moving Consumer Goods (FMCG) with presence, inter alia, in home care and beauty and personal care products, as well as in the foods and beverages sectors. Their presence is world-wide as well as in India. He pointed out that the plaintiffs are the proprietors of the well- known and famous marks LUX, DOVE, PEARS as also RIN which are globally renowned brands. With reference to LUX, DOVE and PEARS (all bathing soaps), the plaintiffs control an aggregate of 19.8% of the market share in relation to toilet / bathing soaps in India. These brands have also been endorsed by well-known and reputed celebrities from time to time. Mr. Tulzapurkar submitted that these soaps marketed by the plaintiffs comply with stringent and well accepted industry standards and in particular the BIS standards.
5. Mr. Tulzapurkar brought to my attention that on 7th January, 2021, the defendant, and who also carries on the business of consumer goods (including soaps), issued a ten second teaser film in Hindi titled "SACH COMING SOON" which depicted models sitting at a table where one says "Filmstars, celebrities aur bollywood beauties kuch bhi bolne tayyar hote SR Pasha, Sr PS Page 5 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx hai par sach bolney se ghabratey hai, sach coming soon". He brought to my attention the story board of the said teaser which is annexed at Exhibit Q-1 to the Plaint.
6. Mr. Tulzapurkar pointed out that on or about 8/9 January, 2021, the plaintiffs came across three audio-visual advertisements in the Hindi language titled (1) "FILMSTARS KI NAHI, SCIENCE KI SUNO"; (2) "DUDH JAISE SAFED SOAP KA SACH"; and (3) "TRANSPARENT SOAP KA SACH", which were launched by the defendant in respect of its product referred to in those advertisements as the "SEBAMED CLEANSING BAR". Mr. Tulzapurkar submitted that each of these advertisements target, specifically display, orally mention and disparage the plaintiffs LUX SOAP, DOVE BAR and PEARS SOAP by insinuating that the use of these soaps on your skin is as bad as using the detergent soap "RIN". This is merely and solely on the basis of the pH levels of the respective products.
7. Mr. Tulzapurkar submitted that most soaps have a pH of 9-10 and are completely safe, gentle and aren't harmful to the skin at all. However, the impugned campaign is launched by SR Pasha, Sr PS Page 6 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx the defendant to create a scare in the minds of the consumers with regard to the market leading affordable soaps of the plaintiff with a view to make unjust gains by fraudulently creating a market for the defendant's product which are priced much higher. The manner, intent and storyline of these advertisements are not only misleading and contain falsehoods, but are outright disparaging and denigrating of the plaintiffs' products and hence cannot be aired / displayed, was the submission. According to Mr. Tulzapurkar, in addition to the aforesaid, the advertisements also infringe the registered trade marks in respect of the plaintiffs aforementioned products.
8. As far as the impugned advertisements / TVCs are concerned (the story boards of which are at Exhibit-Q2 to Exhibit-Q4 of the Plaint), Mr. Tulzapurkar submitted that they depict four women protagonists (out of which one appears to be posing as a scientist). The protagonists of the respective advertisements urge the viewers to ascertain the truth about the pH levels of the respective plaintiff's soaps LUX, DOVE and PEARS. It is then indicated that the pH levels of LUX and PEARS is the same as the detergent soap RIN and that DOVE is SR Pasha, Sr PS Page 7 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx also high (pH 7). In comparison, the pH level of SEBAMED CLEANSING BAR (the defendant's product) is 5.5 which is perfect for sensitive skin. It is for this reason that the impugned advertisement / TVCs, titled as "FILMSTARS KI NAHI, SCIENCE KI SUNO" (with reference to the LUX soap);
"DUDH JAISE SAFED SOAP KA SACH" (with reference to the DOVE bar) and "TRANSPARENT SOAP KA SACH" (with reference to the PEARS soap), suggest that the plaintiff has been lying to the consumers and in view of the alleged high pH levels it is suggested that the products of the plaintiff are not appropriate / harmful / harsh on the skin of the consumer. Mr. Tulzapurkar submitted that this was evident from the tone, expression and tenor used by the protagonists while referring to the plaintiffs' products. To put it simply, Mr. Tulzapurkar submitted that the message conveyed in the TVCs is clear from the prelude / teaser aired/displayed/published on 7th January, 2021 (Exhibit-Q-1 to the Plaint) wherein the same protagonists are warning the viewers and conveying that filmstars and celebrities and bollywood beauties do not tell the truth and that the three women in the impugned TVCs will be bringing them the truth shortly. In other words, when one sees the three SR Pasha, Sr PS Page 8 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx impugned advertisements along with the teaser, the impression sought to be created is as if the plaintiffs are lying about their product and misleading the public. This is sought to be conveyed to the public purely on the basis as if the pH of a soap is the sole determinative factor for the quality of a soap and that any soap having a pH higher than 5.5 is not safe, inferior, sub-standard, harmful, dangerous and bad in quality and is not appropriate for the requirements / suitability of human skin.
He submitted that the defendant has resorted to the impugned campaign deliberately and consciously and with a clear intention to slander, denigrate and disparage the plaintiffs LUX, DOVE and PEARS soaps / products and to gain unjustly by promoting its SEBAMED CLEANSING BAR by publishing misleading statements and insinuations with regard to the plaintiffs' LUX, DOVE and PEARS soaps / products by projecting them as harmful / harsh on the skin. He submitted that the entire purpose of the impugned campaign is directed at conveying a message to the consuming public that the plaintiffs' LUX, DOVE and PEARS soaps / products are not safe, harsh and harmful on the skin and of a quality inferior to the defendant's product only on the basis that they have a higher SR Pasha, Sr PS Page 9 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx pH level. He submitted that the LUX, DOVE and PEARS soaps have been rubbished by the impugned advertisements and have equated them with detergent soaps, which by their very nature, have a totally different composition and function. He submitted that this has been done only on the basis of the pH level of the products in question which, in fact, by itself, is never the sole determinative factor for ascertaining the mildness or harshness of a soap on the human skin.
9. Mr. Tulzapurkar submitted that there are documents on record to show that the three soap products of the plaintiff are a result of very different ingredients than those contained in the RIN detergent bar and cannot be compared. He submitted that the effect of the product on the skin i.e. harshness or mildness is not governed by the pH level, but by the ingredients contained in the soap. He submitted that most soap bars have a pH in the range of 9 to 10 while detergent bars have a pH in the range of 10 to 10.5 However, the similarity ends there. The pH is not the sole determinant of the impact of the product on the skin in terms of harshness. However, that is exactly what is sought to be portrayed by the impugned SR Pasha, Sr PS Page 10 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx advertisements / TVCs. In this regard, he also brought to my attention a copy of the decision of The Advertising Standards Council of India (for short "ASCI") dated 24th August, 2016 (Exhibit "X" to the plaint), in respect of a complaint pertaining to an advertisement displayed by the plaintiff regarding the DOVE soap. He submitted that ASCI itself has categorically held that although DOVE does not have alkaline pH, it is incorrect to conclude that it is milder than other alkaline soaps based on the pH parameter alone. As per the data submitted by the advertiser, normal use conditions typically do not induce differential skin effect. Also, apart from pH, the product's mildness also depends on the other characteristics of the product composition and a soap with a higher pH can be milder than a soap with a lower pH level. The mildness claimed by DOVE was not adequately substantiated for the typical contact period for a bathing soap on the pH parameter alone. The Consumer Complaints Council, therefore, concluded that the reference to a litmus test to support the claim "Harsh nahi, gentle chuno" was not substantiated and was misleading. The advertisement contravened Chapter I.1 and I.4 of the Code and hence the complaint was upheld. He, therefore, submitted that SR Pasha, Sr PS Page 11 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx the defendant's TVCs were clearly misleading in as much as they sought to create the impression that the harshness and mildness of a soap is solely determined on the basis of its pH level. He submitted that the impugned advertisements clearly disparage and belittle the products of the plaintiffs, and hence, more than a prima facie case is made out for granting an ad- interim injunction as sought for in prayer clause (a) of the Interim Application. In support of his arguments, Mr. Tulzapurkar relied upon the following decisions:
(i) Gujarat Cooperative Milk Marketing Federation Vs. Hindustan Unilever Limited and Ors. [2019 (2) ABR 401];
(ii) Godrej Consumer Products Limited vs. Initiative Media Advertising and Ors. [2002 (114) Bom.
L.R. 2652];
(iii) M/s. Lakhanpal National Limited vs. M.R.T.P. Commission and Anr. [(1989) 3 SCC 251].
10. On the other hand, Mr. Dhond, the learned senior counsel appearing on behalf of the defendant, submitted that the defendant is a reputed pharmaceutical company in India which markets its products globally to 65 countries. Its total income for the year 2019-20 was approximately INR 3.30 SR Pasha, Sr PS Page 12 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx crores. He submitted that the products manufactured by the defendant enjoy and command a higher reputation and goodwill amongst medical practitioners, traders and the consuming public and their products are sold all over the country and are also exported to many foreign countries. Some of the big brands such as GLYCOMET, ECOSPRIN and ROSEDAY belong to the defendant and regularly feature in medical publications. He submitted that SEBIPHARMA GmbH & Co. KG is a renowned German company and is the sole, absolute and exclusive owner and world-wide proprietor of the trademark SEBAMED in several classes, including 3 and 4. In India, the said company is the registered proprietor of the trademark SEBAMED in classes 3 and 5 under Trademark Registration No. 1461253 dated 6th June, 2006. As a result of its extensive world-side sales, the said company has acquired an enviable reputation and goodwill in the world market and distinctiveness of its trademarks. One such trademark is the brand SEBAMED and which is a household name across the globe, including India. In fact, the bathing cleansing bar SEBAMED is considered the world's leading skin care brand from Germany and was developed in 1967 with a pH level of 5.5 to support the skin's natural SR Pasha, Sr PS Page 13 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx protective layer. SEBAMED is known to provide comprehensive skin care solutions for all age groups.
11. Mr. Dhond submitted that as far as the present dispute is concerned, normal healthy skin has the pH range of 5.4 to 5.9. Use of soap with high pH (higher the pH, greater the alkalinity) causes an increase in the skin pH which, in turn, has an increase in the dehydrating effect by removing the body's natural oils, irritability and alteration in bacterial flora. Thus, it is a scientific fact that higher the pH, the harsher it will be on one's skin acidity levels. A neutral pH value of 7 can also cause irritation and allergies. Optimal protection and compatibility with the skin (and which is slightly acidic), is only achieved with a pH value of 5.5. He submitted that an article in the Indian Journal of Dermatology specifically supports the aforesaid assertions and opines that the majority of soaps and shampoos available in the market in India do not disclose their pH. It is in these circumstances that a series of advertisements were launched by the defendant to disclose the accurate pH value of common bathing soap brands, including, inter alia the plaintiffs brands LUX, DOVE and PEARS. The advertisements SR Pasha, Sr PS Page 14 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx basically only compare the pH level of these brands LUX, DOVE and PEARS with that of the defendant. He submitted that the brands of the plaintiffs, LUX and PEARS closely matched the plaintiff's detergent soap RIN (actual pH value 10.52), which fact was also disclosed in the advertisements in relation to the said brands. He submitted that the defendant's soap has a pH of 5.5 which is ideal for sensitive skin and which is a matter of fact and which is a completely truthful and accurate assertion. To put it simply, he submitted that all that the advertisements do is to inform the public that the pH value of LUX and PEARS soap is almost the same as the pH value of the plaintiff's detergent soap RIN and even the pH value of DOVE is higher than the ideal pH value for sensitive skin. All these statements are factually correct and, therefore, it cannot be asserted by the plaintiff that the advertisements are either disparaging or belittling the products of the plaintiff and neither are they misleading in any manner.
12. Mr. Dhond submitted that though the plaintiff has argued that the pH is not the only determinative factor in ascertaining the harshness or mildness of a soap, it cannot be SR Pasha, Sr PS Page 15 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx disputed that it is certainly one of the relevant factors. He submitted that when one looks at the advertisements of the defendant, the advertisements in no way assert the role of pH as the only determinant of the beneficial effects of a bathing soap, as falsely claimed in the plaint. The fact that the defendant's advertisements show a lady in a white coat (representing a scientist) categorically stating "Sensitive skin ke liye ideal pH level hona is 5.5" "Sebamed - perfect 5.5 for sensitive skin", it is clear that the defendant's advertisements are specifically targeting those with sensitive skin and stating as a matter of fact that the defendant's SEBAMED bathing bar has the ideal pH level for sensitive skin, unlike the products of the plaintiff.
13. Mr. Dhond submitted that, in fact, the plaintiff also clearly agrees with the importance of pH of bathing soaps in as much as the plaintiff Group's own advertisements for their product DOVE (which is one of the brands in issue in the present suit), was not only highlighted in the past, but also, in a manner similar to the defendant's advertisements that are impugned in the present suit. In fact, the advertisement of the SR Pasha, Sr PS Page 16 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx plaintiff highlights the pH level of DOVE in a laudatory manner along with a claim that it was milder in comparison to sandal soap and detergent soap where the detergent soap was categorized as harsh. In one print advertisement, DOVE was also specifically compared with competitor brands, like Nuetrogena, which were named. Once the plaintiffs themselves have compared their own soap (DOVE) with a detergent soap and have given the impression that their soap is milder purely because of a lower pH value, they cannot today be heard to say that the defendant's advertisements are either disparaging or belittling the soaps of the plaintiff. He submitted that the plaintiffs' advertisements use a litmus paper to compare various bathing brands (unnamed) with a detergent bar (which appears to be RIN) to conclude that they are as harsh, whereas the plaintiffs' DOVE soap is claimed to be milder purely on the basis that DOVE has a lower pH. He submitted that the plaintiffs' own conduct demonstrates that it considers a litmus test for acidity or alkalinity of a bathing soap to be an appropriate measure of harshness or gentleness of the said soap. Without any scientific parameters for such a conclusion being disclosed, it cannot now urge that the use of a more SR Pasha, Sr PS Page 17 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx precise pH test to ascribe a scientific value of such acidity and alkalinity of bathing bars and thereafter disclosing the same in the defendant's advertisement, is impermissible. Similarly, given that the plaintiff has used detergent bars in their advertisement to illustrate that a litmus strip turning blue is a measure of harshness, they cannot now urge that the use of a detergent bar in the defendant's advertisement denigrates or belittles the plaintiffs' soaps. The plaintiffs cannot be allowed to approbate and reprobate in this fashion, was the submission. He further submitted that all this material has been deliberately suppressed and concealed in the present suit and on the ground of suppression also, no equitable ad-interim relief ought to be granted to the plaintiff.
14. Lastly, Mr. Dhond submitted that the impugned advertisements are a form of commercial free speech and, as such, are protected under Article 19(1)(a) of the Constitution of India and cannot be indicted by any law unless the same falls within the exception of Article 19(2) of the Constitution of India. He submitted that clearly from what is stated above, it cannot be said that the advertisements of the defendant, in any SR Pasha, Sr PS Page 18 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx way, disparage or belittle the plaintiffs' bathing soaps. What is stated in the advertisements is factually correct and which is not even disputed by the plaintiffs. In these circumstances, it can hardly be said that the advertisements of the defendant are either false, misleading or malicious so as to require any interference by this Court at the ad-interim stage. He, therefore, submitted that no case is made out for granting any ad-interim reliefs and the same ought to be rejected.
15. I have heard the learned counsel for the parties at length and have perused the papers and proceedings in the above suit. I must state that though lengthy arguments were canvassed and which I have noted above, including several decisions cited, considering that I am deciding only an application for ad-interim relief, I am not delving into the issues in great detail, lest it be said that I have decided the Interim Application finally.
16. Before I examine whether the plaintiff is entitled to any ad-interim relief, it would be necessary to understand the law on the subject of disparagement and denigrating a product SR Pasha, Sr PS Page 19 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx through the medium of advertisement. Advertising, which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product advertised. The public at large is benefitted by the information made available through the advertisement. In a democratic economy, free flow of commercial information is indispensable. There cannot be honest and economical marketing to the public at large without they being educated by the information disseminated through advertisements. It is settled law that whilst advertising one's own product, he is entitled to declare his goods to be the best in the world, even though the declaration may be untrue. He can also say that his goods are better than his competitors, even though such statement may be untrue. He can also say that his product is the best in the world or better than his competitors and also compare the advantages of his product over the product of others. However, while doing so, he cannot say that his competitors are bad and if he does so, either expressly or by necessary implication, he would be guilty of slandering the goods of his competitors and defaming his competitors and their goods. This is not permissible and, in such a case, the Court would be justified in SR Pasha, Sr PS Page 20 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx granting an order of injunction restraining the repetition of such defamation. It is equally well settled that to decide the question of disparagement, the principles that have to be kept in mind by the Court are: (a) the intent of the commercial / advertisement; (b) the manner of the commercial / advertisement and (c) the story line of the advertisement / commercial and the message sought to be conveyed by it. The manner of the advertisement and the message sought to be conveyed are very important. If the manner and the message of the commercial / advertisement belittles, ridicules or condemns the product of the competitor, then, it amounts to disparaging. However, on the other hand, the message and the manner of the advertisement is only to show one's product as being better or the best, without denigrating the other's product, then it is not actionable. To put it simply, there are several decisions of our Court as well as other Courts which lay down that where the manner of the advertisement and the message sought to be conveyed only shows the advertisers products better or best in comparison to its competitors, without denigrating and belittling the product of the competitor, then the same is not actionable as it would not SR Pasha, Sr PS Page 21 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx amount to disparagement. On the other hand, if the manner of the advertisement and the message sought to be conveyed by the same is such that it belittles the product of the competitor, the same would amount to disparagement and the party who complains of the same would be entitled to appropriate reliefs, including an injunction restraining the opposite party from airing and/or displaying such advertisements. In the present case, since the impugned advertisements are targeted at the regular consumer, one has to apply these tests viewing it from the eyes of a common man with average intelligence. One must understand that a regular consumer is not a scientist who knows what are the ingredients that go into making a soap and what is the effect of those ingredients on the skin including the pH level of a soap.
17. I must mention that there is one more facet to this. If the Court comes to the conclusion that the advertisement is disparaging, then, the Court has to look at the advertisement and identify the parts that belittle the competitor's product and grant an appropriate injunction accordingly. It does not mean that the entire advertisement has to be stopped from being SR Pasha, Sr PS Page 22 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx aired and/or displayed, but only parts of the advertisement which disparage the product of the competitor ought not to be aired and/or displayed in the advertisement. I must hasten to add that this does not mean that in every case the Court is powerless to grant an injunctive relief, restraining the airing/displaying of the entire advertisement which would be objectionable in nature. That would necessarily depend on the facts and circumstances of each case.
18. Having set out these principles, I will now examine how they apply to the facts of the present case. In the present case, the impugned audio-visual advertisements are three in nature. They are titled (1) FILM STARS KI NAHI, SCIENCE KI SUNO; (2) DOODH JAISE SAFED SOAP KA SACH; and (3) TRANSPARENT SOAP KA SACH, which were launched by the defendant in respect of its product referred to in those advertisements as SEBAMED CLEANSING BAR. The story board of these three advertisements are annexed at Exhibits Q- 2 to Q-4 of the Plaint.
19. As far as the advertisement with reference to the SR Pasha, Sr PS Page 23 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx DOVE soap of the plaintiff is concerned (namely, "DOODH JAISE SAFED SOAP KA SACH"), the story board can be found at Exhibit-Q3 (pages 183 to 187 of the plaint). I have gone through the story board at Exhibit Q-3 in great detail. In this advertisement, protagonist 1 says "Woh Jo Doodh Jaise Safed Sabun Hain Na, Uska pH Level Pata Hai Kitna Hai". Protagonist 2, in the background voice over says "Dove Ka pH hain Seven (7)". Thereafter, protagonist 1 says "Seven" and thereafter asks "Aur Sebamed ka?" to which protagonist 2 replies "Perfect 5.5 for sensitive skin". Thereafter, protagonist 1 says "Isliye Film Stars Ki Nahi, Science Ki Suno". As far as this advertisement is concerned, namely, comparing the product of the defendant SEBAMED to the product of the plaintiffs' DOVE soap, I do not think that the same is in any way disparaging of the plaintiffs' DOVE soap. All that it does is that it points out to the public that the pH level of the DOVE soap is 7 whereas the pH level of the defendant's soap SEBAMED is 5.5, which is ideal for sensitive skin. In other words, all that this advertisement seeks to convey is that the defendant's product is better than that of the plaintiff. I do not think that this advertisement, therefore, in any manner, disparages and/or belittles the DOVE SR Pasha, Sr PS Page 24 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx soap of the plaintiff. If at all, all it does is that it boasts that the pH level of its soap is lower than that of the DOVE soap of the plaintiff and is, therefore, better or best for sensitive skin. I, therefore, do not think that the plaintiff is entitled to any injunctive relief as far as the advertisement titled "DOODH JAISE SAFED SOAP KA SACH" is concerned, and which is really an advertisement comparing the SEBAMED CLEANSING BAR of the defendant with the DOVE soap of the plaintiff.
20. Having said this, I shall now consider the advertisement titled "FILM STARS KI NAHI, SCIENCE KI SUNO", which compares the defendant's SEBAMED CLEANSING BAR with the plaintiffs' LUX soap. The story board of this advertisement can be found at Exhibit-Q2 (pages 175 to 182 of the plaint). This story board reveals three models in a bath-tub. Protagonist 1 says "Film Stars ke Beauty Soap ka pH Level Kiske Jitna Hota Hai". Thereafter, a washing detergent which appears to be RIN, is shown in the advertisement and protagonist 1 says "Iske Jitna Hota Hain". Thereafter, protagonist 2 says "Confused" "Aao, Demo Dekhe". Thereafter, protagonist 4 who is a model representing a SR Pasha, Sr PS Page 25 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx scientist in a white coat says "Sensitive Skin Ke Liye Ideal pH Value Hota Hain Five Point Five (5.5)". "Aao Lux Ka Dekhe". After that, the advertisement shows the Lux soap of the plaintiff along with pH value of 10 and protagonist 1 says "Ten (10)". Thereafter, protagonist 1 says "RIN Ka Dekhe?" ....... Also Ten (10)". Thereafter, protagonist 3 asks "Sebamed Ka"
and it is shown in the advertisement that SEBAMED's pH value is 5.5 and protagonist 4 in the background voice over says "Sebamed, Perfect Five Point Five (5.5) for Sensitive Skin".
Thereafter, the advertisement ends by protagonist 1 saying "Isliye Film Stars Ki Nahi, Science Ki Suno". I have considered the story board as well as seen the advertisement. As far as this advertisement is concerned, I find considerable force in the argument canvassed by Mr. Tulzapurkar that it disparages the plaintiffs' LUX soap by insinuating that the use of this soap is as bad or equivalent to using the detergent soap RIN on the skin. Mr. Tulzapurkar was correct in his submission that this would clearly be disparaging the plaintiffs' LUX soap as it creates an impression in the mind of the public that using the LUX soap on your skin is equivalent to using the RIN detergent on your skin. Further, this impression is sought to be created SR Pasha, Sr PS Page 26 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx merely by referring to the pH value of LUX and RIN which is the same. It cannot be disputed that in making a soap, several ingredients go into determining the quality and harshness/mildness of the soap. The mildness or harshness of a soap is not determined on the value of pH alone. Depending on the ingredients of the soap, it is very possible that a soap having a higher pH value may still be milder on your skin than a soap having a pH value which is lower. In fact, in a complaint filed by a consumer against an advertisement displayed by the plaintiff themselves, The Advertising Standards Council of India (ASCI), by its decision dated 24th August, 2016, has clearly opined that it is incorrect to conclude that a soap is milder than other alkaline soaps based on the pH parameter alone. In fact, the plaintiff has averred in the plaint that most soap bars have a pH in the range of 9 to 10, while detergent bars have a pH in the range of 10 to 10.5. This is not even disputed by the defendant. However, the similarity ends there. The pH is not the sole determinant of the impact of the soap on the skin in terms of its harshness. However, in the advertisement titled "FILM STARS KI NAHI, SCIENCE KI SUNO", the message sought to be portrayed is that merely SR Pasha, Sr PS Page 27 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx because LUX has the same pH level as the RIN washing detergent, it is like using a washing detergent on one's skin. This, to my mind, at least prima facie, not only disparages and belittles the plaintiffs' LUX soap, but misleads the public into believing that the LUX soap is as harsh to use on your skin as using a washing detergent. This, in my view, cannot be permitted as the pH level of a soap is not the sole determinant factor to ascertain whether the soap is mild or harsh on the skin and it certainly cannot be equated with a washing detergent, whose composition is quite different from that of a bathing soap.
21. Having said this, it does not mean that airing/displaying the entire advertisement needs to be injuncted. If there is no reference to the washing detergent, then prima facie, there would be nothing that would be disparaging in the advertisement of the defendant. This is for the simple reason that the advertisement then would merely be portraying that the pH level of the defendant's soap is the ideal pH level for the skin in comparison to the pH level of the plaintiff's LUX soap. I am, therefore, of the view that the SR Pasha, Sr PS Page 28 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx defendant ought not be allowed to air and/or advertise and compare their product with the plaintiffs' LUX soap with a reference to a washing detergent and that too, only by referring to the pH level. In these circumstances, I think that the appropriate injunctive relief that ought to be granted in the facts of the present case would be to permit the defendant to air their advertisement titled "FILM STARS KI NAHI, SCIENCE KI SUNO", without any reference to the washing detergent RIN or any other washing detergent. I must hasten to add that the reason I say this is because the advertisement only compares the pH level (with nothing more), of LUX soap with that of a washing detergent and thereafter seems to suggest that using the LUX soap on your skin is equivalent to using a washing detergent. This, to my mind, is not only misleading, but belittles the LUX soap of the plaintiff. This would, therefore, not be protected under commercial free speech as contemplated under Article 19(1)(a) of the Constitution of India. The shelter of Article 19(1)(a) does not permit a party to disparage, belittle and/or malign the product of the competitor. SR Pasha, Sr PS Page 29 of 41
(NOB)IAL808.21_IA1.21_COMIPL805.21.docx
22. As far as the advertisement titled "TRANSPARENT SOAP KA SACH" is concerned (comparison of the defendant's SEBAMED cleansing bar with the PEARS soap of the plaintiff), the story board can be found at Exhibit Q-4 (pages 188 to 196 of the plaint). After carefully going through the story board, I find that the same is identical to the story board for the LUX soap at Exhibit Q-2 to the plaint. Here too, the defendant seeks to compare it's SEBAMED CLEANSING BAR with the plaintiffs' PEARS soap and then further compares the plaintiffs' PEARS soap with the RIN detergent. This advertisement is almost identical to that of the LUX soap, except that in this advertisement, the LUX soap is substituted with the PEARS soap of the plaintiff. In these circumstances, the same reasons that are set out by me earlier in relation to the LUX soap, would be wholly applicable on all fours even to this advertisement. This being the case, even as far as this advertisement, namely, "TRANSPARENT SOAP KA SACH" is concerned, I think the appropriate injunctive relief that ought to be granted in the facts of the present case would be to permit the defendant to air their advertisement titled "TRANSPARENT SOAP KA SACH"
without any reference to the washing detergent RIN or any SR Pasha, Sr PS Page 30 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx other washing detergent. I must once again hasten to add that the reason I say this is because the said advertisement only compares the pH level (with nothing more) of the PEARS soap with that of a washing detergent and thereafter seems to suggest that using the PEARS soap on your skin is equivalent to using a washing detergent. This, to me, is not only misleading, but belittles the PEARS soap of the plaintiff. This would, therefore, squarely again, not fall within commercial free speech as contemplated by Article 19(1)(a) of the Constitution of India, as the shelter of Article 19(1)(a) does not permit a party to disparage, belittle and/or malign the product of the competitor.
23. I must also mention that in the plaint, the plaintiff has set out banners / promotional material / on-line advertisements which show a pH scale whereby the SEBAMED CLEANSING BAR is shown at a level of pH 5.5 and the pH level of LUX and RIN is shown as 10 with wordings on the top stating "DID YOU KNOW pH OF LUX IS THE SAME AS RIN?" An identical banner is also there for the PEARS soap. Both these SR Pasha, Sr PS Page 31 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx banners are reproduced hereunder for convenience:-
LUX SOAP PEARS SOAP
24. Even looking at these banners, the impression that is sought to be created by these banners is that using LUX or PEARS soap on your skin is equivalent to using the RIN SR Pasha, Sr PS Page 32 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx detergent bar. This too would go to show that these banners, purely on the basis of the pH level, seem to suggest that using the LUX and the PEARS soap is equivalent to using the RIN detergent soap on your skin. This clearly, does not only have the effect of disparaging and belittling the plaintiff's product, but is misleading, as the pH level of a soap is not the sole determinant factor to ascertain whether the soap is mild or harsh on the skin and it certainly cannot be equated with a washing detergent, whose composition is quite different from that of a bathing soap.
25. However, the same cannot be said with reference to the banner/advertisement in relation to the DOVE soap. The said banner / promotional material / online advertisement show a pH scale in which the defendant's SEBAMED CLEANSING BAR is shown at a level of pH 5.5 and the pH level of the DOVE soap (of the plaintiff) is shown at 10. On top of the pH scale, the words that appear are "Yes, pH of DOVE is not 5.5 It's not perfect for sensitive skin" and below it is stated (next to the image of SEBAMED CLEANSING BAR) "Perfect pH SR Pasha, Sr PS Page 33 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx 5.5 for sensitive skin". The said banner is reproduced hereunder for ready reference:-
DOVE SOAP / BAR
26. As far as this banner is concerned, applying the principles set out by me earlier, I do not find that there is anything disparaging in the said banner as the same only reflects that the defendant's product is better than that of the plaintiff's DOVE soap. This, with nothing more, cannot be said to be disparaging the plaintiffs' product or, in any way, belittles the plaintiff's product.
27. I must also mention that in the plaint, the plaintiff has reproduced a pH scale appearing on the website of the SR Pasha, Sr PS Page 34 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx defendant, which indicates (for soaps) that pH levels between 5 and 6, are "safe", whereas pH levels between 6 and 10 are "not safe" and again, pH levels between 0 and 5 are "not safe".
Below that, it is stated that "the pH is measured on the pH bar 'O' indicating acidic and '14' indicating alkaline. The pH of water is 7 which is neutral. Normal healthy skin has a pH of 5.5 which is slightly acidic and SEBAMED products also have a pH of 5.5". It is further stated below - "pH 5.5 leads to soft and smooth skin, aids in skin renewal and imparts a healthy glow to the skin and guards skin from infections". The said pH scale appearing on the website of the defendant is reproduced hereunder:-
28. Mr. Dhond fairly stated that it was incorrect on the SR Pasha, Sr PS Page 35 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx part of the defendant to categorize any soaps with a pH between 6 to 10 or between 0 to 5 as "not safe". It was also wrong on the part of the defendant to categorize soaps having pH levels between 5 to 6 as "safe". He, therefore, submitted that the words "not safe" and "safe", would be substituted with the words "not ideal" and "ideal" respectively, and that this change would be effected immediately on the website of the defendant.
The said statement is accepted as an undertaking given to this Court.
29. Before parting, it would be unfair on my part not to deal with the argument of Mr. Dhond that considering the advertisements that were given by the plaintiffs themselves in relation to their DOVE soap and comparing it to a detergent bar, the plaintiff cannot now be allowed to contend to the contrary. In other words, it was the argument of Mr. Dhond that the plaintiff itself comparing the pH level of other soaps with the detergent bar and then showing their DOVE soap in a laudatory manner, purely on the basis of the pH level, cannot take any objection to the advertisements aired and/or displayed by the defendant, who have done exactly the same thing. Whilst this SR Pasha, Sr PS Page 36 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx argument may sound attractive at the first instance, on a closer scrutiny, I do not find any substance. Firstly, it has not been mentioned anywhere as to when these advertisements were aired. Be that as it may, Mr. Tulzapurkar was quick to point that these advertisements were aired long back and before ASCI gave its decision on 24th August, 2016 wherein it made it clear to the plaintiff that it was incorrect on their part to advertise to the public that their soap was milder purely on the basis of the pH level. Once the decision of ASCI was communicated to the plaintiff in 2016, the said advertisements and hoardings were removed. This being the case, I do not find any substance with reference to this argument. To put it differently, even if I were to assume that the plaintiff had misled the public in the past and for which it was pulled up and after which it has pulled down the impugned advertisements, does not give any right to the defendant to do the same. Two wrongs do not make a right. This being the case, I find no substance even in this argument.
30. In view of the foregoing discussion, the following ad- interim order is passed in Interim Application (Lodg) No.808 of SR Pasha, Sr PS Page 37 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx 2021:
(a) As far as the advertisement titled "DOODH JAISE SAFED SOAP KA SACH" is concerned (comparing the defendant's SEBAMED cleansing bar with the DOVE soap of the plaintiff), no ad-interim relief is granted and the defendant is permitted to air its advertisement in its current form;
(b) as far as the advertisements titled "FILMS STARS KI NAHI, SCIENCE KI SUNO" (comparing the defendant's SEBAMED cleansing bar with the LUX soap of the plaintiff) and "TRANSPARENT SOAP KA SACH" (comparing the defendant's SEBAMED cleansing bar with the PEARS soap of the plaintiff), the defendant is allowed to air and/or display the said two advertisements without any reference to the RIN detergent bar or any other detergent soap.
In other words, those advertisements can be aired in a modified/edited form, without any reference to a washing detergent. This will also apply to any SR Pasha, Sr PS Page 38 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx hoardings, banners or any other form of advertising on any social media platforms, including the internet. In other words, any advertisement of the defendant comparing their SEBAMED CLEANSING BAR with the LUX soap of the plaintiff or the PEARS soap of the plaintiff shall not have any reference to the RIN detergent bar or any other detergent soap or washing detergent;
(c) the pH scale appearing/displaying on the website of the defendant, which indicates (for soaps) that pH levels between 5 and 6, are "safe", whereas pH levels between 6 and 10 are "not safe" and again, pH levels between 0 and 5 are "not safe", shall be changed so that the words "safe" and "not safe"
shall be substituted with the words "ideal" and "not ideal" respectively.
31. The defendant shall file their affidavit-in-reply to the above Interim application within a period of four weeks from today and serve a copy of the same on the advocates for SR Pasha, Sr PS Page 39 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx the plaintiff. The plaintiff shall be at liberty to file an affidavit- in-rejoinder, if any, within a period of two weeks thereafter and serve a copy of the same on the advocates for the defendant.
32. List Interim Application (Lodg) No.808 of 2021 peremptorily for hearing on 16th March, 2021.
33. This order shall be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned shall act on production by fax or e-mail of a digitally signed copy of this order.
B.P. COLABAWALLA, J.
34. After the order was pronounced, Mr. Rohan Kadam, the learned counsel appearing on behalf of the defendant, prayed for a stay of this order. Considering the findings that I have given in the order, I do not think that the defendant can be allowed to continue to advertise in a manner which disparages and/or belittles the products of the plaintiff. In these SR Pasha, Sr PS Page 40 of 41 (NOB)IAL808.21_IA1.21_COMIPL805.21.docx circumstances, the question of granting a complete stay of the order is out of the question. However, the defendant shall have ten days' time to pull down any physical hoardings and/or modify them in terms of this order so as to ensure its compliance.
B.P. COLABAWALLA, J.
SR Pasha, Sr PS Page 41 of 41