Bombay HC dismisses appeal by SEBAMED against stay on broadcasting ads disparaging Hindustan Unilever soaps

A division bench of the Bombay High Court on Wednesday dismissed an appeal filed by USV Private Limited (USV), owner of SEBAMED soap brand, challenging a single-judge order restraining the brand from broadcasting advertisements in print or electronic media, ridiculing Hindustan Unilever (HUL) and Wipro soap brands.

A bench of Justices GS Patel and Abhay Ahuja held that the order by single-judge Justice AK Menon was a well reasoned one as he rightly refrained from conducting a mini trial at the interim stage.

“It notes meticulously the rival submissions on each side. At the same time, he navigated what were potentially treacherous waters and did not conduct a mini trial at interim stage,” the Court said.

HUL was aggrieved by three Hindi audio visual advertisements of USV in respect of its product SEBAMED cleansing bar.

The advertisement allegedly disparaged ‘LUX SOAP’, ‘DOVE BAR’ and ‘PEARS SOAP’ by insinuating that using these soaps was equivalent to using ‘RIN DETERGENT’ soap, belonging to HUL, because of the pH levels of the respective products.

The single-judge had directed USV to destroy all copies of the advertisements that the company might have been using so far and restrained them from publishing or broadcasting any further derogatory material.

In the appeal, USV contended that the single judge was in error as he failed to appreciate the defense of truth taken by USV.

It was also contended that the result of the order was far-reaching as it constituted a restraint on the right to free speech and expression including the right to commercial free speech which advertisers are entitled to.

However, the Court said that it cannot accept the argument by USV that 5.5 pH, as claimed by USV Pvt Ltd, was the perfect pH for human skin.

“This is where case has a huge gaping hole. You’re asking a court at interim stage to accept the fact that 5.5ph is perfect pH. You may be right but this will have to wait till trial. Wipro and HUL may have material to argue too,” the Court stated.

Further, it said that the case was more about consumer protection than free speech.

“This is not so much a case of free speech as it is about consumer protection. As the judge noted, the freedom of commercial speech isn’t unrestricted,” the Court stated.

An appellate court could not substitute the single judge’s view just because another view was possible, the division bench underlined.

The Court also noted that the single-judge, before passing his order, had examined closely the plaintiff’s case for the three essential requirements:

1. Prima facie case;
2. Balance of convenience in their favour;
3. Possibility of irreparable loss if injunction is not granted.

Therefore, observing that the view taken by the single judge was not entirely arbitrary or perverse, the division bench dismissed the appeal. Bar and Bench