Hindustan Unilever Limited And ... vs Unilever Plc
2021 Latest Caselaw 516 Bom

                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    ORDINARY ORIGINAL CIVIL JURISDICTION
                                          IN ITS COMMERCIAL DIVISION


                                    INTERIM APPLICATION (L) NO. 808 OF 2021
Anjali T.   Digitally signed by
            Anjali T. Aswale

Aswale      Date: 2021.01.11
            17:31:34 +0530
                                                        IN
                                     COMMERCIAL IP SUIT (L) NO. 805 OF 2021


            Hindustan Unilever Limited and Anr.                         ...   Plaintiffs
                           Versus
            USV Private Limited                                         ...   Defendant


            Mr. Virag Tulzapurkar, Sr. Counsel and Mr. Hiren Kamod a/w Mr.
            Nishad Nadkarni, Ms. Khushboo Jhunjhunwala, and Mr. Prem Khullar
            i/b Khaitan & Co. for the Plaintiffs


                                                        CORAM:    B.P.COLABAWALLA, J.

                                                        DATE:     11TH JANUARY, 2021


            P.C.:

1. Mentioned. Not on Board. Heard by video conferencing.

2. Not on board. Mr. Kamod, the Ld. Advocate for the Plaintiffs mentioned this matter today stating that there is a great urgency in the matter. An urgent application for production of the papers and proceedings has been fled by the Plaintiff. In view thereof, I have taken up the matter on board.

3. The Plaintiff seeks to move without notice for the reasons set out in paragraph 74 of the Plaint. The present suit has been fled to claim

reliefs against the Defendant who is allegedly committing the tort of slander of goods and injurious falsehood by maliciously publishing print and audio visual advertisements that are disparaging and denigrating the goods of the Plaintiffs.

4. It is stated that the Plaintiffs are amongst the most well-known and reputed companies in the business of fast moving consumer goods (FMCG), with presence, inter alia, in Home Care & Beauty and Personal Care Products and Foods & Beverages sectors, world wide and in India. It is stated that Plaintiffs' are the proprietors of the well known and famous marks LUX, DOVE, PEARS and also RIN which are globally renowned brands. It is stated that the Plaintiffs' LUX, DOVE and PEARS control an aggregate of 19.8% of the market share in relation to toilet / bathing soaps in India. It is stated that the Plaintiffs' LUX, DOVE and PEARS products have been endorsed by well-known and reputed celebrities from time to time. It is stated that soaps manufactured and marketed by the Plaintiff under the marks LUX, DOVE, PEARS and RIN comply with stringent and well accepted industry standards, in particular the BIS Standards. It is stated that with the outbreak of the Corona Virus, the Plaintiff has issued various advertisements with a view to create an awareness and to promote washing of hands generally and since about January 2020, the Plaintiff has, in the interest of the public, also indicated in some of the advertisements that any soap can be used i.e not just 'Lifebuoy' or 'Lux' belonging to the Plaintiff but also soaps of other manufacturers like Dettol, Santoor or Godrej No.1.

5. The Defendant carries on the business of consumer goods including soaps and is a competitor of the Plaintiff. The soaps of the Defendants are sold inter alia under the mark SEBAMED. It is stated that the Defendant claims that its SEBAMED soap has a pH

level of 5.5 and seeks to give an impression to the consumers and the public at large that any product which has a pH Level higher than that is not safe, is harmful and ought not to be used.

6. It is stated that on 8th January 2021 the Defendant launched an advertisement campaign with wide spread publication of the same across print media, news papers, television channels, hoardings etc. It is stated that the Defendant with a view to dent the market shares of the Plaintiff, has indulged in specifc targeting of the LUX, DOVE, PEARS and RIN products of the Plaintiff which are market leaders by using wrongful, misleading and malicious marketing tactics which are disparaging and denigrating the Plaintiff's popular soap products.

7. According to the Plaintiffs on 7th January 2021, the Defendant issued a 10 second teaser flm in Hindi titled " Sach Coming Soon" wherein it depicted three models sitting at a table where one of them says "flmstars, celebrities aur bollywood beauties kuch bhi bolne ke liye tayyar hotey hai par sach bolneyse ghabratey hai, sach coming soon". The story board of the said teaser is annexed as Exhibit Q-1 to the Plaint. On or about 8 th/ 9th January 2021, the Plaintiffs came across 3 (three) audio visual advertisements in the Hindi language titled (i) Filmstars Ki Nahi, Science Ki Suno, (ii) Doodh Jaise Safed Soap Ka Sach, and (iii) Transparent Soap Ka Sach launched by the Defendant in respect of its product referred to therein as the "SEBAMED CLEANSING BAR". It is stated that each advertisement targets, specifcally displays, orally mentions and disparages the Plaintiff's "LUX Soap", "DOVE Bar" and "PEARS Soap" by insinuating that the use of these soaps is as bad as using the detergent soap RIN of the Plaintiff on the skin, merely and solely on the basis of the pH levels of the respective products. It is

stated that most soaps have a pH of 9-10 and are completely safe, gentle and not harmful to the skin at all, however the Impugned Campaign is creating a scare in the minds of the consumer with regard to the market leading affordable soaps only with a view to make unjust gains by fraudulently creating a market for their products which are priced much higher. It is stated that the manner, intent and story line of these advertisements are not only misleading and contain falsehoods but are outright disparaging and denigrating and impermissible in law. It is stated that in addition to the above, the advertisements also infringe the registered trade marks in respect of the Plaintiffs' aforementioned products including the LUX Marks, DOVE Marks, PEARS Marks and RIN Marks. A compact disc containing the three audio-visual advertisements / Impugned TVCs is at Exhibit R to the Plaint. The story boards of each of the three impugned advertisements are at Exhibits Q-2 to Q-4 to the Plaint.

8. The Impugned TVCs 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 a detergent soap RIN and that of Dove is also high, whereas the pH Level of the SebaMed soap of the Defendant is 5.5 which is perfect for sensitive skin. It is stated that the ads are accordingly titled as "Filmstars ki Nahi Science ki Suno", "Doodh Jaise Safed Soap ka Sach" and "Transperent Soap ka Sach" to suggest that the Plaintiff has been lying to the consumers and that in view of the allegedly high pH levels it is suggested that truth is that the products of the Plaintiffs are not appropriate and harmful / harsh on the skin. It is stated that the above is evident from the

tone, expressions and tenor used by the protagonists while referring to the Plaintiffs products. The Impugned TVCs seek to suggest to the consumer that the suggestions made in the Impugned TVCs are supported by science / scientifc material and hence the products of the Plaintiffs endorsed by celebrities ought not to be purchased / used and only SEBAMED soap of the Defendant is perfect for use. The message conveyed in the Impugned TVCs is clear from the prelude / teaser published on 7 January 2021, where the same protagonists are shown warning the viewers and conveying that flm stars, celebrities and Bollywood beauties do not tell the truth and that the three women in the Impugned TVCs will soon bring them the "truth". It is stated that the false message sought to be conveyed to the consumer is that pH 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 the human skin. It is stated that the Impugned Campaign seeks to convey to the viewers and public at large that only SEBAMED is the only perfect soap for use by humans and that using the Plaintiffs' LUX, DOVE or PEARS bathing soaps would be equivalent to using a harsh or inappropriate detergent soap and must not be used or must be discarded. The insinuation is also that the Plaintiffs' RIN detergent bar is also substantially harsh, sub-standard and inferior product.

9. It is stated that the Defendant has resorted to the Impugned Campaign deliberately, consciously and maliciously with a clear intention to slander, denigrate and disparage the Plaintiff's 'LUX', 'DOVE', 'PEARS' and 'RIN' soaps/products and to gain unjustly by promoting its 'SEBAMED CLEANSING BAR' by publishing misleading statements and insinuations with regard to the

Plaintiff's 'LUX', 'DOVE', 'PEARS' and 'RIN' soaps/products by projecting them as harmful / harsh on the skin. It is stated that the said advertising campaigns are directed conveying a message to the consuming public that the Plaintiff's 'LUX', 'DOVE', 'PEARS' and 'RIN' soaps/products are not safe, harsh and harmful on the skin and of a quality inferior to the Defendant's products including its SEBAMED CLEANSING BAR since same are alleged to have higher pH levels, should be feared and also seek to convey a clear unambiguous message that the same should not be used.

10. Mr. Kamod submitted that the 'LUX', 'DOVE', 'PEARS' soaps/products have been rubbished by the Impugned Advertisements of the Defendant and have been equated with detergent soaps which by their very nature have a totally different composition and function and have been shown in poor light with direct references to the aforesaid brands of the Plaintiffs. He submitted that the misleading and false comparison is made only on the basis of the pH level of the products in question, which in fact, by itself, is never the sole determinative factor of the effect that a soap product has on the skin. He submitted that the documents annexed to the Plaint show that pH levels of the LUX, DOVE and PEARS products are a result of very different ingredients than those contained in the RIN detergent bar and cannot be compared; that the effect of the product on the skin, i.e. harshness or mildness or appropriateness is not governed by the pH level but by the ingredients contained in the soap. He submitted that plain water has a pH of 7 and going by the insinuations and claims made in the Impugned Campaign, washing hands with plain water would be harmful for the skin.

11. It is stated that most soap bars have pH in the range of 9 to 10 while detergent bars have pH in range of 10 - 10.5, however the similarity ends there. pH is not the sole determinant of the impact of a product on the skin in terms of harshness. It is stated that if pH was such a critical parameter for the safety of product on skin, it would have been an explicit specifcation defned in the mandatory Bureau of Indian Standards for toilet soaps, bathing bars and detergent bars. However, pH is not a defned specifcation in either the toilet soaps or bathing bar standards; and was in fact removed from the second revision of the BIS standard for household detergent bars as well.

12. It is stated that the Impugned Campaign is malicious as the Defendant has in the past advertised the fact that its product has a pH level of 5.5, however the same has not yielded any results as is evident from the viewership of its advertisements. The Defendant has therefore sought to make an incorrect and misleading and denigrating comparison on the basis of the pH levels only with a view to catch eyeballs by denigrating the well known brands / products of the Plaintiffs with a view to use the same as a launchpad for its product / brands which according to the Plaintiffs is clear from the fact that the earlier advertisements of the Defendant's products the same have a pH level of 5.5 did not garner much viewership including on YouTube whereas the Impugned TVCs, on YouTube alone have garnered combined views of over 29,000 views in a span of just 48 hours from publication as evident from the YouTube pages of the Defendant. It is further stated that the products of the Plaintiffs are products which are offered to all consumers alike at affordable price points, whereas the product of the Defendant is an expensive product. The advertisement is designed to disrupt the market of the Plaintiffs by making

misleading and false statements to make inroads into a customer base that is not presently available to the Defendant.

13. Mr. Kamod submitted that the manner of the impugned advertisements is to ridicule the Plaintiffs' products. He submitted that the Defendant's intention is to mar the Plaintiffs' reputation in the market. He relied upon the decisions of this Court in Gujarat Cooperative Milk Marketing Federation Ltd. vs. Hindustan Unilever Ltd. and Ors.1; Godrej Consumer Products Limited vs. Initiative Media Advertising and Ors.2 and Marico Limited vs. Vivek Mittal3. He submitted that with each passing minute the Plaintiffs continue to suffer serious and continuous injuries to their reputation and goodwill. He submitted that the numerous comments of the Plaintiffs' customers on the impugned advertisements that have been uploaded by the Defendant on its YouTube channel, show the extensive and disastrous impact of the Impugned Campaign upon the reputation and goodwill of the Plaintiffs' products which has been painstakingly built by the Plaintiff over last several decades. He submitted that in such circumstances it is absolutely just and necessary that an immediate order be passed restraining the Defendants from continuing the broadcast / use of the impugned advertisements. He submitted that over the last couple days, the Defendant has bombarded the market with the impugned advertisements across all media including digital, newspaper, pamphlets, hoardings, etc. He submitted that the goodwill and reputation of the Plaintiffs is suffering continuously and increasingly.

2019 (2) ABR 401

2012 (52) PTC 260 (Bom)

Order dated 11th April 2018 in Notice of Motion (L) No. 809 of 2018

14. I have heard the submissions in detail and perused the record, including the actual Impugned TVCs, Impugned advertisements and story boards thereof.

15. The law in respect of comparative advertisement and disparagement of goods is well settled. In Gujarat Cooperative Milk Marketing Federation Ltd. vs. Hindustan Unilever Ltd. and Ors. (supra), the Division Bench of this Court held:

"24. One of us (B.R. Gavai, J.), while sitting as a Single Judge, had an occasion to consider an identical issue in the case of Godrej Consumer Products Limited vs. Initiative Media Advertising & Anr. MANU/MH/1141/2012 : 2012 (52) PTC 260 (Bom.). In the said judgment, the Single Judge of this Court, while considering various earlier judgment on the issue, has observed thus:

...

17. It can, thus, clearly be seen that it is a settled position of law that a tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue. He can also say that his goods are better than his competitors, even though such statement is untrue. He can also say that his product is best in the world or better than his competitors' and also can compare the advantages of his product over the products of the others. However, while doing so, he cannot say his competitors are bad and, if he does so, he really slanders the goods of his competitors and defames his competitors and their goods which is not permissible and only in such a case the Court would be competent to grant order of injunction restraining repetition of such defamation."

"18. It is equally settled that to decide the question of disparagement, the following factors are to be kept in mind:

(i) Intent of commercial

(ii) Manner of the commercial

(iii) Storyline of the commercial and the message sought to be conveyed by the commercial.

Out of the above, "manner of the commercial", is very important. If the manner is ridiculing or condemning product of the competitor then it amounts to disparaging but if the manner is only to show one's product better or best without derogating other's product then that is not actionable."

It could thus be seen that for deciding the question of disparagement, Court will have to take into consideration intent of the commercial, manner of the commercial and storyline of the commercial and the message sought to be conveyed by the commercial. We will also be required to consider as to whether manner of the commercial is ridiculing or condemning product of the competitor, to come to the conclusion that it amounts to disparagement. However, if manner of the commercial only shows advertiser's product better or best without derogating the other's product then the same would not amount to disparagement."

(emphasis supplied)

16. It is clear that in comparative advertisements, the Defendant is entitled to claim that its product is better or best provided he does it without denigrating the Plaintiffs' product. Further, if the manner of the defendant's advertisement is ridiculing or condemning the product of the plaintiff, then it amounts to disparagement. Prima facie, in my view, the manner, storyline, intent and message sought to be conveyed by the Impugned Campaign not only shows that the Defendant's product is better but also ridicules / derogates the products of the Plaintiffs. Prima facie, it does appear that by the Impugned Campaign, the Defendant is trying to infuence the consumers not to buy the Plaintiffs' products. In this context, this Court in the case of Marico Limited vs. Vivek Mittal (supra) has held:

"9. ... Any campaign to educate the members of the public by placing before them the true and correct facts may be welcomed. However, under the garb of educating and/or bringing the correct facts before the members of the public, no one should put misleading information which disparages/discredits or belittles someone else's product or infuences the consumer not to buy the said product. ..."

17. In view of what is stated in paragraph 74 of the Plaint and in view of the above, I am satisfed that the object of granting the following relief would be defeated if notice of this application is given to the Defendant. The Plaintiffs have made out a strong prima facie case for the grant of ad-interim relief. The balance of convenience is in favour of the Plaintiffs. If the ad-interim relief is not granted the Plaintiffs shall suffer irreparable harm / injury. There shall accordingly be an ad-interim order in terms of prayer clause (a) of the Interim Application except the bracketed potion, which reads as follows:

(a) That pending hearing and fnal disposal of the present suit, the Defendant, its parent company, group companies, subsidiaries, directors, servants, offcers, employees, representatives, agents, advertising agencies and all other persons claiming under them or acting in concert with them or on their behalf or acting on their instructions be restrained by a order and injunction of this Hon'ble Court from in any manner using, telecasting or broadcasting or otherwise howsoever communicating to the public or publishing the Impugned Campaign including without limitation the Impugned TVCs, Impugned Banners, Impugned Warning, Impugned Hoardings of the news paper ads or any material comprising all or any part of the above or any other content of a similar nature in any language or in any manner causing the Impugned Campaign including without limitation the Impugned TVCs, Impugned Banners, Impugned Warning, Impugned Hoardings of the news paper ads or any material comprising all or any part of the

above [or any other content of a similar nature] to be used or telecast or broadcast or communicated to the public or published in any manner or mode or means (including without limitation over the internet);

18. I am conscious of the fact that in the view of the urgency of the Plaintiffs' application, I am passing this order without hearing the Defendant. In view of the same and given the nature of the present action, I am making this application returnable on 14 th January 2021. The injunction order shall operate till then. Plaintiffs are granted liberty to renew their application for further reliefs on the adjourned date, after giving notice to the Defendant.

19. The Defendant shall fle its reply, if any, on or before the next date.

20. Plaintiffs to comply with the provisions of Order XXXIX Rule 3 of the Code of Civil Procedure, 1908 immediately.

21. Liberty is granted to the Defendants to apply for variation of this order with 48 hours prior notice to the advocates for the Plaintiffs.

22. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.

(B. P. COLABAWALLA, J.)