GS Patel, J
1. There are two Appeals. This common order will dispose of both. Both appeals arise from a common order and judgment dated 16th June 2022 (AK
Menon, J). In Commercial IP Suit (L) No.805 of 2021, Hindustan Unilever Limited (“HULâ€) is the Plaintiff. In Commercial IP Suit (L) No.1087
of 2022, Wipro Enterprises Private Limited (“Wiproâ€) is the Plaintiff. The Defendant is common, USV Private Limited (“USVPLâ€).
2. HUL and Wipro both complained that USVPL launched an advertising campaign promoting and publicising its product under the brand SEBAMED.
They claimed that the advertising campaign run by USVPL constituted unlawful disparagement and denigration USV Pvt Ltd vs Hindustan Unilever
Ltd & Anr And USV Pvt Ltd vs Wipro Enterprises Pvt Ltd 904-OSIAL-22107-2022-IN-COMAPL-22103-2022+J.doc of HUL and Wipro products,
in which the Plaintiffs had valuable intellectual property rights. To be perfectly clear at the beginning, HUL sought protection for four of its products
under the brand names, LUX, DOVE, PEARS and RIN. Clearly RIN is not of a class with the other three because it is a detergent. For its part
Wipro sought protection for its product SANTOOR.
3. Mr Dhond, learned Senior Advocate for USVPL in appeal, submits that in his 74-page judgment the learned Single Judge was materially in error on
several distinct aspects. First, he did not properly appreciate the defence of ‘truth’ taken by USVPL. Second, the learned Single Judge
incorrectly held that USVPL’s products and the Plaintiffs’ products were incomparable. Third, the learned Single Judge ought to have
delivered an authoritative pronouncement on the law in regard to the limits of what is or is not permissible in what we will call comparative advertising
campaigns. By this, we mean advertisements for products where rival products are juxtaposed and set one against the other, with the advertiser
making claims in regard to one and purporting to show how it is superior to the other products.
4. Mr Dhond also submits that the result of the impugned order is far-reaching. It constitutes an unconscionable restraint on the right to commercial
free speech and expression available to advertisers. This kind of a restraint, he submits, is excessive and the law is settled that if there is to be a
restraint on such a right, it has to be minimally restrictive.
5. Before we consider the submissions advanced, we set before us ourselves a reminder of the governing jurisprudential framework within which an
appellate Court must function especially when dealing with an interim order. This was settled a very long time ago by the Supreme Court in Wander
Limited And Another v Antox India Private Limited. 1990 (Supp) SCC 727. In paragraph 14, the Supreme Court said:
“14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will
not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown
to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal
of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material
and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the
material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it
had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court
reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial
court's exercise of discretion.
(Emphasis added)
6. Wander v Antox was reaffirmed by the Supreme Court in Mohd Mehtab Khan v Khushnuma Ibrahim Khan. (2013) 9 SCC 221. That was a case
where a Division Bench of this Court granted interim relief in an appeal against an order of the learned Single Judge. In paragraph 20, the Supreme
Court said:
20. In a situation where the learned trial court on a consideration of the respective cases of the parties and the documents laid before it was of the
view that the entitlement of the plaintiffs to an order of interim mandatory injunction was in serious doubt, the appellate court could not have interfered
with the exercise of discretion by the learned trial Judge unless such exercise was found to be palpably incorrect or untenable. The reasons that
weighed with the learned trial Judge, as already noticed, according to us, do not indicate that the view taken is not a possible view. The appellate court,
therefore, should not have substituted its views in the matter merely on the ground that in its opinion the facts of the case call for a different
conclusion. Such an exercise is not the correct parameter for exercise of jurisdiction while hearing an appeal against a discretionary order. While we
must not be understood to have said that the appellate court was wrong in its conclusions what is sought to be emphasised is that as long as the view
of the trial court was a possible view the appellate court should not have interfered with the same following the virtually settled principles of law in this
regard as laid down by this Court in Wander Ltd. v. Antox India (P) Ltd. [1990 Supp SCC 727]
7. In our recent judgment in World Crest Advisors LLP vs Catalyst Trusteeship Ltd & Ors, Interim Application (L) No. 19253 of 2022 in Commercial
Appeal (L) No. 19252 of 2022, decided on 23rd June 2022 we have read this law to mean two things. First, that this established line of authority
requires appellate court self-restraint; interference merely because it is possible is impermissible. If the impugned order takes a possible and a
plausible view, an appellate Court will not interfere. Second, that this has a corresponding counterpart for the appellant. If the challenge is to an order
refusing an interlocutory injunction, then it is insufficient for a plaintiff in appeal to merely show a prima facie case. He must now show an
overwhelming prima facie case, such that the order refusing the interlocutory injunction was not even a possible view. If the injunction is granted,
conversely, the burden lies heavily on the defendant against whom the injunction is granted to show that there is no prima facie at all, and that no
injunction could possibly have been granted. It is for the appellant to establish that the view of the trial court was not even a possible or a plausible
view, or that its view was entirely arbitrary, capricious or perverse, i.e. one such as no reasonable, fair-minded or judicious person could ever have
taken. It is not possible when assessing an interim order to say merely that the learned Single Judge ought to have done something more or something
less than he did.
8. As we shall see, Menon J’s judgment is simultaneously elaborate and cautious and strikes an appropriate balance. The impugned order
meticulously notes the rival submissions. At the same time, Menon J carefully navigated what were potentially treacherous waters and did not conduct
a mini-trial at the interim stage, while yet examining closely the Plaintiffs’ case for the three essential requirements required in any application for
interim relief, viz., assessing whether there was a prima facie case, gauging the balance of convenience and testing where lay the more irreparable
injury.
9. As to the litigation history: against an ad-interim order dated 19th January 2021 (BP Colabawalla, J) HUL went in appeal dissatisfied with the ad-
interim order and saying that the learned Single Judge ought to have granted further relief. On 21st January 2021 the Division Bench dismissed that
Appeal. There are certain observations in paragraph 9 of that appellate order on which Mr Dhond relies quite heavily. We will return to these
momentarily. USVPL had also appealed the ad-interim order. On 27th January 2021 the same Bench disposed of USVPL’s appeal keeping all
contentions open for the final hearing of the Plaintiffs’ Interim Application.
10. The facts are not many. We will not delay over a description of either HUL or Wipro. It is enough to note that each of HUL’s products has
independently a significant market share and collectively an even more significant one. Trade mark registrations are not in dispute. The products are
endorsed by various famous persons and celebrities including film stars. HUL claims that all its products comply with the necessary statutory
requirements.
11. USVPL began selling it products sometime before early January 2021 in the Indian market. SEBAMED is imported. In early January 2021,
SEBAMED introduced a promotional teaser film in Hindi with provocative title “sach coming soonâ€. Three models seated at a table said that film
stars, celebrities and ‘Bollywood Beauties’ were ‘ready to say anything’ but were ‘scared to tell the truth’ and that ‘the truth
would soon come out’. This emphasis on ‘truth’ by USVPL carries on to this day. The teaser was first available on USVPL’s
YouTube channel. Later in January 2021, HUL came across three audio visuals in Hindi launched by USVPL for its SEBAMED cleansing bar. Each
of these three advertisements referred specifically to HUL’s LUX soap, DOVE soap and PEARS soap. The advertisements went on to claim
that for a person to use these products while bathing was like bathing with HUL’s detergent soap, RIN.
12. HUL claimed that not only were the intent and trajectory of all these advertisements misleading and false, but also that they impermissibly
disparaged and denigrated the Plaintiffs’ products.
13. In January 2021, USVPL begun broadcasting these advertisements on many popular television channels. They also appeared on USVPL’s
webpage. USVPL also issued full-page advertisements.
14. Specifically, the advertisements claimed that HUL’s LUX soap had a pH value of 10, equivalent to HUL’s own detergent RIN, and
therefore there was no real difference between bathing with LUX and bathing with RIN. Both were just as bad for ‘sensitive’ human skin.
USVPL claimed that SEBAMED had a ‘perfect’ pH
5.5 for ‘sensitive skin’. We note that this phrase itself has distinct components. The first is that the pH (potential of Hydrogen) of 5.5 of
SEBAMED is to be taken as an uncontested truth. The second is the so-called perfection or desirability of this pH 5.5 marker. The third is that this is
supposedly optimal for sensitive skin. The fourth is that all sensitive skin everywhere is the same irrespective of other factors such as environmental
considerations, racial types, skin variations, climatic conditions and so on. If it is Mr Dhond’s case that truth is a defence and that he has at least
been able to show prima facie that there is ‘truth’, then it is axiomatically insufficient for him to merely show that there is external material
establishing any one or even a few of these ingredients. Everyone of them would have to be shown conclusively and as not being open to debate at
any time, even at the trial; i.e., that all were uncontested and not contestable, immutable ‘truths’. Menon J found that all these assertions are
triable issues best left to the trial, incapable of final decision at the interim stage. We agree.
15. Then came the ad-interim order with which we have alluded. By this time, there was another advertisement campaign comparing SEBAMED to
DOVE and other advertisements relating to LUX and the PEARS soap though now without a reference to the RIN detergent. A modified
advertisement did not equate the soap with the detergent. All advertisements were partly modified. USVPL claimed that pH levels between 6 and 10
were ‘unsafe’ and those between 5 and 6 were ‘safe’. Those words ‘safe’ and ‘unsafe’ were substituted with the words
‘ideal’ and ‘not ideal’. The modified advertisements continued to be aired; therefore HUL’s insistence on an injunction. HUL also
said that this was all a camouflage because the modified advertisements were not materially different from the originals. There were constant
reminders to the original advertisement â€" consumers were being asked to recall the original comparison.
16. Before Menon J, Mr Tulzapurkar for HUL urged that USVPL’s entire campaign was not even remotely truthful. Indeed, it was grossly
misleading and conveyed false information to consumers. Specifically, pH is not, in his submission, a determinant at all. By claiming a so-called
‘perfect’ pH of 5.5, the clear suggestion was that HUL’s products were substandard. There was, therefore, a disparagement and
denigration. The learned Single Judge’s attention was drawn to material regarding the pH factor and how this affects soaps and bathing bars.
HUL argued that the claim of a perfect pH of 5.5 had no basis in fact because far from there being incontrovertible scientific data and a consensus as
to a so-called perfect 5.5 pH, the weight of scientific study showed that there is no ‘perfect’ pH at all. There were also reports to say that
USVPL’s claim that it had a pH of 5.5 itself was incorrect â€" it was actually higher. This would have to be tested at the trial.
17. HUL argued that the campaign was misleading for another purpose LUX and PEARS are toilet soaps. DOVE is a bathing bar. LUX and PEARS
are subject to the Bureau of Indian Standards (“BISâ€) specifications. DOVE is also subject to those specifications. The BIS has no reference to
pH whatsoever. The pH requirement is not therefore something that is statutorily required and, therefore, not even shown to be relevant. In contrast, it
was pointed out that USVPL’s product was said to be “soap-freeâ€. It contained no alkalis at all. We reject immediately Mr Dhond’s
submission that it is being imported as a soap. That might be for other purposes. The submission before Menon J by HUL and Wipro was that it was
impossible to contemplate a situation where a soap was being compared with a non-soap in a disparaging fashion.
18. This is actually very much the heart of Mr Dhond’s submission on law, viz., that it is entirely possible in exercise of this right of commercial
free speech to compare wholly different or distinct products and to legitimately set one against the other, to make claims extolling one while showing
the other to be sub-par. We are expressing no view at this stage on the correctness of this submission, although prima facie it seems to us to be
overbroad and not in keeping with the law as it stands at least in this country. Mr Tulzapurkar’s submission was that the law in India prohibits
comparing the incomparable. If the pH is not a determinant, and if SEBAMED’s claimed pH of 5.5 is at the very least in doubt (there is material
to show it is 5.7 or more), and there is no research or analysis of how a higher pH affects skin, then releasing an advertisement which says that a non-
soap is superior on account of a lower pH is clearly disparaging.
19. It was also submitted that merely using ‘ideal’ or ‘non-ideal’ would not really change what it was that USVPL had set out to do.
20. In the Wipro suit, Mr Sakhardande adopted the arguments canvassed by Mr Tulzapurkar for HUL and also submitted that pH
is not and never had been a relevant criteria to determine what he describes as the ‘efficacy’ of a soap. In Wipro’s case, USVPL set its
SEBAMED against Wipro’s SANTOOR and drew a comparison only on the basis of pH value although pH is not a mandatory pre-requisite.
21. Even before the learned Single Judge, USVPL agreed to restrict itself to its modified advertisements. This was opposed. USVPL agreed that
there was no soap in SEBAMED. The argument by USVPL was that everybody in the industry used terms like soap, bathing bar, cleansing bar and
so on interchangeably. Therefore, it was submitted that if, for example, HUL’s PEARS soap was a bathing bar then it must also not be a soap but
PEARS described it in one place as a soap and at another place as a bathing bar. The specific plea taken before the learned Single Judge was, quite
simply, truth â€" an absolute, incapable of a different perception, incontrovertible, where no two views are even possible.
22. Mr Dhond argued then, as he does now that if truth is a defence to a defamation action, then it is equally a defence to a disparagement and
denigration action one that also lies for damages in tort. But as we have noted above this is an over-simplification because it is difficult to understand
what precisely Mr Dhond claims is the “truthâ€. In fact, there is a dispute about almost every single assertion that USVPL makes, from start to
finish. Is SEBAMED’s pH value 5.5 or something else? Which is the ‘truth’? Is it a ‘truth’ that pH is a determining requirement of a
soap? Is it a ‘truth’ that pH is a determinant of a non-soap? Is pH a specification standard for soaps or non-soaps? Are all skin-types the same?
Are all skin-types in India (or the world) the same? Are all ‘sensitive’ skin-types the same?
23. The perilous flaw in Mr Dhond’s construct is the assumption that every one of these is so utterly ‘true’ that it cannot possibly ever â€
at any stage, including at the trial â€" be shown to be false. How did USVPL set about showing this? In fact, it did not. All that it showed was a mass
of so-called ‘scientific’ data claiming that pH in a bathing product has an impact on skin. But this is surely in the realm of expert evidence and
will need to be tested at trial. HUL and Wipro disputed every single assertion from SEBAMED’s claimed pH of 5.5 to whether pH was at all
even remotely relevant to the products in question.
24. The submissions are reflected in paragraphs 29 and 30 of the impugned order at pages 61 to 63:
“29. According to Mr. Dhond truth is a complete answer to the allegations of the plaintiffs. What the defendants advertising campaign states is the
true since the plaintiffs admit the pH value of its products. Once the plaintiffs admit the pH value of Lux, Dove and Pears and Santoor there is no
merit in the contention that the impugned campaign is meant to denigrate or disparage the plaintiffs products. My attention is invited to the averments
in the HUL plaint and in the order dated 19th January, 2021 and in particular paragraph 6 and 7 of that order. The plaintiffs case is that pH is not the
sole determinative factor but not that it is irrelevant. The pH of the plaintiffs product Dove is a statement of fact which the defendants had carried in
its advertisement. Referring to the plaint and the reproduction of the different components of the campaign as reproduced in the plaint, Mr. Dhond
submits that the portion “kiske jitna†appearing at page no.175 of the plaint has now been replaced with “kitnaâ€. As far as the contents of
page 176 are concerned, the same has deleted entirely and the next frame is represented in page 177. Page 178 continues as it is whereas the next
page 179 is deleted entirely. Pages 180 and 181 then continue. The use of the opening screen “LAST YEAR 8 TH JAN†referring to the
campaign of January 2020 Mr. Dhond submits that it has been modified suitably. Mr. Dhond submitted that the modified advertisement as set out in
Exhibit “Q3†has not been changed. Mr. Dhond then made reference to the difference in the two campaigns post the ad-interim order and the
order of the Appeal Court. In the case of each product of the plaintiff viz. Dove as aforesaid followed by Pears and Lux.
30. Mr. Dhond further submitted that the plaint itself makes various references to pH and it is obvious that pH is a very relevant factor. He has invited
my attention to the various averments the plaint in this respect particular in paragraph 57 of the plaint which extensively deals with the aspect of pH
levels in the various products. It is evident that throughout paragraph 57 the plaintiffs have focused on the aspect of pH and cannot now seek to
contend that pH is not a relevant factor at all. pH is very much relevant to the product in question and is an important factor to be taken into
consideration when using skin care products. Mr. Dhond further submitted that in the context of skin and in particular sensitive skin pH of the soap is
a relevant criteria and there is a scientific literature to establish that pH of the soap can cause an effect on skin more alkaline the soap the greater the
potential to cause allergy. My attention has been drawn to the order of the Division Bench on the aspect of pH and Mr. Dhond submits that there is no
material to deny the relevancy of pH in reference to skin care products. While the defendant concedes that pH is not the sole criteria for assessing the
quality and safety of a soap, it is definitely an important factor and this cannot be overlooked and this is the reason why the plaint in paragraphs 57
onwards deals extensively with the effect of pH on skin.â€
(Emphasis added)
25. In our view, the emphasized portions â€" especially the underlined portion â€" put paid to Mr Dhond’s assertion of USVPL’s
advertisement claims being any kind of absolute and inviolable ‘truth’. The moment USVPL agreed that pH was not the sole criteria, its
defence failed, at least at the prima facie stage, for its advertisements are based on, and only on, pH as a tipping factor. Of course the plaints would
have mentioned pH â€" there was nothing so very odd about that, for USVPL’s impugned advertisements were all pH-centric. Both Plaintiffs
assailed USVPL’s pH value claims about its product and theirs. That did not mean that the ‘truth’ was established.
26. From paragraphs 36 to 84, we find the learned Single Judge’s reasoning and conclusions. He noted for instance that the Advertising Standards
Council of India had in 2016 concluded that pH is not the sole determinant of the mildest of the soap â€" and pH is the only factor on which the whole
of USVPL’s SEBAMED advertising campaign was predicated. There was little point in debating the correctness otherwise of the ASCI
standards. The point only is that USVPL’s assertion that there could not be any debate or dispute about the so-called truth was found to be
incorrect.
27. In paragraph 47 at page 76, the learned Single Judge held:
“47. In my view there is only one aspect that has to be considered in the facts of the present case viz. whether by making reference to the
plaintiff’s products, the suit campaign is disparaging or denigrating the plaintiffs’ soaps. It must be borne in mind that the defendant claims that
its product SEBAMED is not a soap. Thus, there is an admission on a crucial one inasmuch as the defendant’s product SEBAMED is not a soap
whereas all of the plaintiff’s products referred to in the suit campaign are soaps. Quite apart from that fact in some cases, bathing bars, cleansing
bars are referred to a soaps and vice versa, it is also to be borne in mind that the test to be applied is how an ordinary member of the public would
respond to the advertisement in India while advertisers seek to attract viewers using catchy phrases, visuals, freedom of commercial speech can be
subjected to reasonable restrictions. The right to freedom of speech (including commercial speech) offers no protection against defamation, slander,
libel, denigration or disparagement. …
(Emphasis added)
28. Menon J then went on to say in paragraphs 48, 49 and 50:
“48. The court also found that in a disparagement suit, the court would have to examine whether the object of the advertisement is to highlight the
benefits of the products of the advertiser in comparison to those of others or to denigrate the products of others, which would amount to defamation.
Considering the balance of convenience, the court would have to weigh the competing interests of the applicant seeking the injunction and the party
opposing injunction. The impact of social media was also considered. Observing that watching television and surfing the internet are part of the daily
routine in every household and advertisements have a great impact on consumers, the court also found that while the novelty of advertisement may
attract the potential buyers, derogatory references to goods and services on others may also leave a negative impression. The court inter alia observed
whether or not the contents of the advertisement is true or not would be adjudicated upon trial and the disputes regarding acidity levels or alkalinity
levels of the products cannot be decided at an interlocutory stage.
49. In the present case, I do not find the need to delve into in depth examination of the pH values of the plaintiff’s soap since they appear to have
been admitted. The question is now to consider whether in the face of plaintiffs having admitted pH values of Lux, Dove and Pears, whether
campaign continues to be disparaging, denigrating the plaintiffs’ products. That brings us to the relevance of pH in the instant case on whether the
defendant’s products can be said to be actually better and safer for human skin, based on its pH value of 5.5. On this aspect, material placed
before the court does not appear to establish the defendant’s case of a an exact 5.5 pH. If that is so, would it be correct to compare the rival
products on the basis of pH value alone?
50. If the suit campaign merely made reference to the apparent higher pH in general without reference to specific brands, the complexion of the suit
campaign would be different. It is the nature of the commercial and in the manner in which the advertisement has been created as part of the
defendant’s exercise of freedom of commercial speech that has to be considered. …
(Emphasis added)
29. We find this to be completely correct.
30. Importantly, the learned Single Judge also considered the decision of the Delhi High Court in Havells India Ltd & Anr v Amritanshu Khaitan &
Ors2015 SCC OnLine Del 8115 by a learned Single Judge of that Court. Our attention is drawn to paragraphs 36, 48 and 49. In fact, those paragraphs
do not assist USVPL. They say this:
“36. A comparison, which is unfavourable to a competitor does not necessarily mean that it is dishonest or unduly detrimental. A Division Bench of
this Court in Colgate Palmolive Company v Hindustan Unilver Ltd, 2014 (57) PTC 47 [Del] (DB) has held that in comparative advertising, a certain
amount of disparagement is implicit and as long as the advertisement is limited only to puffing, there can be no actionable claim against the same. The
relevant portion of said judgment reads as under:-
“27. The law relating to disparaging advertisements is now well settled. While it is open for a person to exaggerate the claims relating to his goods
and indulge in puffery, it is not open for a person to denigrate or disparage the goods of another person. In case of comparative advertisement, a
certain amount of disparagement is implicit. If a person compares its goods and claims that the same are better than that of its competitors, it is implicit
that the goods of his competitor’s are inferior in comparison.
To this limited extent, puffery in the context of comparative advertisement does involve showing the competitor’s goods in a bad light.
However, as long as the advertisement is limited only to puffing, there can be no actionable claim against the same …
48. In the opinion of this Court, it is open to an advertiser to highlight a special feature/characteristic of his product which sets it apart from its
competitors and to make a comparison as long as it is true. For instance, if a chocolate biscuit manufacturer issues a comparative advertising,
highlighting that his product has the highest chocolate content and the lowest price, then in the opinion of this Court the rival manufacture cannot seek
an injunction on the ground that fibre content or calorific value or protein content had not been compared.
49. In other words, it is open to an advertiser to objectively compare one or more material, relevant, verifiable and representative feature of the goods
and services in question which may include price. There is no requirement in law to disclose each and every factor/characteristic in comparative
advertisement. No reasonable observer would expect one trader to point to all the advantages of its competitor’s business and failure to do so
does not per se take the advertising outside what reasonable people would regard as ‘honest’.â€
(Emphasis added)
31. The point is not that USVPL’s advertisement overlooked or excluded other factors. The point is that USVPL could not convincingly show the
correctness (or ‘truth’) of even the solitary factor on which its entire campaign hinged, viz., pH. It could not show the absolute correctness of
its own product’s pH value. It could not show the correctness of its claim that pH values related to anything ‘safe’ or ‘ideal’ or
‘unsafe’ or ‘not ideal’. It could not show the ‘truth’ that pH values affected ‘sensitive’ skin. It could not show as true that
there was some universal skin, sensitive or otherwise. As is often said, truth, like beauty, lies in the eyes of the beholder (or, in this case, the hands of
the bather). If there is indeed one immutable truth â€" and no one knows this more acutely than a court of law â€" it is that the truth is almost always
infuriatingly elusive.
32. Havells tells us that to defeat an action in denigration or defamation, it must be shown that the advertiser has objectively compared one or more
factors that are relevant, verifiable and representative of the goods and services in question. Nothing in Havells supports the prepositions that Mr
Dhond canvases before us, that wholly subjective comparisons of a possibly irrelevant factor, emphatically not representative of the goods in question
can justifiably be compared.
33. In paragraph 65, Menon J returned precisely this finding, that there was no material before him to support the claim of USVPL that its
SEBAMED pH value was 5.5 was true. Therefore, Menon J said this could only be established at the trial. Paragraphs 69, 71, 75 and 76 are to be
reproduced below:
“69. I am inclined to hold that given the defendant’s declaration and admission that its product SEBAMED is not a soap the comparison with
the plaintiffs’ soap is not appropriate. These are not products which meet the same end or intended for the same purpose as admitted by the
defendant itself. The modification of the advertisement deleting reference to Rin makes no difference. The modified campaign can be continues to
compare the soaps with a cleansing bar which does not contain soap. If the defendant had contended that its product did not contain soap and all
soaps in general are not suitable for sensitive skin but its own product SEBAMED was, it was a different matter altogether but viewing the campaign
as a whole, one sees that it is not case where the defendant had significantly puffed its own product SEBAMED which is admittedly recommended
for sensitive skin and subject to the condition of obtaining medical advice.
71. I find that the comparison in the campaign is clearly amongst the incomparable. The Indian Journal of Dermatology referred to by the Division
Bench and as canvassed by Mr. Dhond, provides for a normal healthy skin which has a pH range of 5.4 to 5.9. It refers to the fact that use of soap
with high pH which would cause an increase in skin pH irritability and alteration in bacterial flora. The majority of soaps and shampoos do not disclose
their pH but the effect remain statutorily which is not liable to be disclosed. It is evident from the material placed before the court by Mr.
Sakhardande, the learned Senior Counsel, appearing on behalf of the plaintiff in the companion suit. In the introduction in this very Article of
September October 2014, the authors have recorded that use of skin cleansing agents with the pH of about 5.5 may be of relevance in the prevention
and treatment of skin diseases. It is pertinent to a note on the defendant’s product SEBAMED that it is not marketed as a soap and indeed it is a
soap free. Its proclaimed declaration of a pH of 5.5 is a fact that is yet to be proved. pH is not a selling point for any toilet soap. All toilet soaps are
thus found to be having a higher pH. The studies are consistent on this aspect and indeed the study recorded by the Indian Journal of Dermatology
(supra) did find that majority of the samples of soap commonly used by the population having pH of between 9.01 and 11. Only two samples had pH
corresponding to that of a skin pH. The difference is attributed probably due to greater accuracy of the pH meter used in the study when compared to
pH paper. The conclusion is that soaps and shampoos have commonly used a pH outside the range of normal skin and hair pH values by use. On
recommending a soap to patients specially those who have sensitive skin and acne prone skin, due consideration is given to the pH factor and it is
suggested that manufacturers may give a thought to pH of soaps and shampoos manufactured by them so that their products will be more skin and
hair friendly. The fact that skin pH is generally found to be between 5.4 and 5.9 is seen in other reports as well but all of these referred to samples
taken abroad including in Canada and elsewhere overseas in different conditions. None of these studies relied upon in the course of hearing are
studies carried out locally in India.
75. Notwithstanding the unavoidable references that I have made to some reviews and data canvassed by both sides. I am of the view that we are
concerned with ascertaining whether or not suit campaign disparages or denigrates the products of the plaintiffs, reference to opinions of experts and
scientists on skin pH, soap pH, cleansing bar pH need not be gone into. Courts are not equipped with the wherewithal for analyzing and deciding on
the basis of scientific data at this interim stage. The fate of the IA is to be decided on the basis of comparisons made in the suit campaign viewed
from the point of view of a common man, a consumer of ordinary disposition and average intelligence.
76. Thus claiming to be a distinctive product, I am of the view that the defendant’s product is not comparable to soaps and in this light, when we
consider the suit campaign I find that it is not an inadvertent or incidental comparison. The comparison is with specific products of a plaintiff whose
popularity has not been questioned. The product of the plaintiff in the second suit being “Santoor†is sought to be presented as being inferior and
not ideal and not substitute for sensitive skin. The defendant has adopted common arguments of both the plaintiffs. Thus, the limited scope of these IA
is to ascertain whether the suit campaign tends to denigrate or disparage the plaintiffs product. This is not a case where the parties have sought to
disparage each other’s products which are direct competitors. There have been several instances such as the ‘Cola wars’ where rival
competitors had mounted campaigns promoting competitive products, both Colas.â€
(Emphasis added)
34. In our view, the learned Single Judge was entirely correct in his approach. He steered clear of the invitation to hold a mini-trial on factual issues.
He correctly assessed the prima facie case that was made out before him. He held then that in all the cases cited before him the comparisons were
between comparative products and not product that were clearly not comparable. Mere nomenclature confusion could not and did not change the
actual nature of the product. It does not matter what you call the product. What matters is what the product actually is and with what one is
comparing it.
35. At the end of the day this is not so much a case of a question of the defendant’s or the advertisers right to free speech as it is about consumer
protection. As the learned Single Judge himself noted, the freedom of commercial speech is not unrestricted.
36. More importantly for our purposes, the learned Single Judge did not discard or unequivocally accept any one particular piece of material. He left
this open to a fuller consideration at the trial, but came to a prima facie conclusion in paragraph 82 that there was purposeful and intentional
disparagement.
37. Mr Dhond invited us to hold that following the first Division Bench’s order of 21st January 2021 in appeal against an ad-interim injunction, the
learned Single Judge should have examined the technical material regarding pH. The relevant portion is in paragraph 9 of that order is at pages 155 to
156 and it reads thus:
“9. … The Respondent has relied on literature available in public domain in that behalf. Indian Journal of Dermatology has published an article
under the title ‘Evaluation of pH of Bathing Soaps and Shampoos for Skin and Hair Care’. The article makes a point in its extract as a
background fact that normal healthy skin has potential of hydrogen (pH) range of 5.4-5.9 and a normal bacterial flora, and use of a soap with high pH
causes an increase in skin pH, which in turn causes an increase in dehydrative effect, irritability and alteration in the bacterial flora. It describes in its
extract of results that majority of soaps have a pH within the range of 9-10, whilst majority of shampoos have a pH within the range of 6-7. The
article further goes on to state that the use of skin cleansing agents with a pH of about 5.5 may be of relevance in prevention and treatment of certain
skin diseases, which are caused due to increase in dehydrative effect, irritability and propionibacterial count. There is also another scientific article
under the title ‘The Effect of Detergents on Skin pH and Its Consequences’. Even this article claims that the normal pH range of human skin is
said to be between 5.4 and 5.9 and that skin surface pH increases upon regular use of a conventional soap and decreases again after change to an
acidic cleanser of pH 5.5 and vice versa. Having regard to this and the other material produced by the Respondent in its short reply, submitted for an
ad interim hearing before the learned Single Judge, it is safe to conclude at least at this threshold prima facie stage that the position taken by the
Respondent in its advertisements is in keeping with the scientific opinion and may be said to be an important piece of information for the purchasing
public. There is, thus, nothing wrong, at least this much could be said at this threshold stage, in the Respondent comparing the pH of the two products
and claiming its product to be ideal for sensitive skin.â€
38. It is self-evident that this was a prima facie view at an ad-interim stage. It could hardly foreclose a fuller discussion at the hearing of the Interim
Application. But the peril lies in this: that if Mr Dhond’s submission is to be accepted, then this question of the pH factor and the material would be
foreclosed even at the trial of the suit. A submission that tends to that result is only to be stated to be rejected.
39. There is only one difficulty in the final order that was granted. The learned Single Judge granted a mandatory injunction as prayer clause (ii) set
out pages 106 (HUL). This is in the nature of a final decree and to that extent the impugned order will have to be modified. This injunction will have to
be deleted.
40. For the rest we are quite unable to see how there is a slightest ground made out for interference. To paraphrase a legendary phrase from
intellectual property law, “one must exercise one’s common sense; why should we be so astute to say that USVPL is not doing that which it is
straining every nerve to do?â€5
41. More importantly, and we say this once again as a reminder to ourselves, the question before us is this: Is the view that Menon J took entirely
implausible, arbitrary, perverse or capricious? Is it such that no reasonable person could have arrived at? If the answer to these questions is no, as
indeed in our view it must be, then both appeals must fail. And they do, though without an order of costs.
42. In view of this, the pending Interim Applications do not survive and they are disposed of as infructuous.
