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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 (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 (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:

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 (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 (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.

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 (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.