Delhi High Court Refuses To Injunct TV Ad Of Puro Pink Salt In Commercial Disparagement Suit Filed By TATA
|A Delhi High Court Bench of Justice C Hari Shankar has refused to injunct the circulation of a television advertisement aired by Puro about its pink color rock salt. TATA had filed a suit alleging commercial disparagement of its white salt.
In that context, it was said that "I am, therefore, of the considered opinion that Tata has failed to make out any prima facie case justifying interference with continued broadcasting of the impugned commercial. Tata also stands disentitled to any injunctive interlocutory relief as, on merits, the case is squarely covered against Tata by the judgment of the Division Bench in Puro-I, as also because the plaint completely suppresses the fact that the very assertions, in the impugned Puro commercial, which Tata finds disparaging of white salt, have been used by Tata itself in selling its Himalayan Pink Salt, to tout it as a “healthy alternative” to white salt."
Senior Counsel Dr Abhishek Manu Singhvi and Senior Counsel Rajiv Nayar, among others, appeared for TATA, while Senior Counsel Akhil Sibal, among others, appeared for Puro.
In this case, the commercial under scrutiny promoted "Puro Healthy Salt," a pink rock salt product. TATA, being a major player in the white salt market, perceived the commercial as disparaging white salt in a general context. Subsequently, TATA sought an injunction against Puro's commercial.
The Court rejected TATA's objection that there was a statutory embargo on use of “Healthy” by Puro
Further, the Court analyzed a catena of past instances of commercial disparagement like Colgate vs HUL and Reckitt v. Wipro, to subsequently observe that, "Applying the principles culled out in the aforenoted decisions, it cannot be said that the Puro’s impugned commercial disparages white salt even generically, much less can it be said that it disparages Tata’s White Salt particularly. Though the overall look and feel of the advertisement of the commercial is what matters, that look and feel has to be assessed from the point of view of a consumer who is conscious of what the commercial says and depicts. The mind of the consumer is expected to take in everything that is contained in the commercial, even if it is not on a frame by frame basis. The effect of the commercial cannot be examined from the point of view of a consumer whose mind works in fast forward mode."
By extension of the same, it was held that the impugned commercial, clearly, merely extols Puro Healthy Salt, in the same manner in which Tata, on the package of its Himalayan Pink Salt, extols that product.
The Court also stressed that in cases where commercials and advertisements are called into question as being disparaging, that what weighs in the balance is the right to free speech and to promote one’s product in the manner one deems most appropriate. By extension of the same, it was observed that, "A competitor must not be permitted, by seeking recourse to litigative measures, or by approaching Court, to dictate the manner in which his rival’s product is to be advertised. His right begins and ends with ensuring that his product is not disparaged. Additionally, the highest that he can seek is that the rival does not, in puffing up his product, resort to serious representations of fact which are misleading or incorrect, or in support of which no quantitative or qualitative data is forthcoming."
Therefore, the Court held that the impugned commercial was well within the boundaries of what is permissible in comparative advertising.
Cause Title: Tata Sons Private Limited & Anr. v. Puro Wellness Private Limited & Anr.