Delhi High Court: In a case wherein the plaintiffs, Tata Sons (P) Ltd. and Tata Consumer Products Ltd. (collectively ‘Tata’) were aggrieved by a commercial aired (‘impugned commercial’) by Defendant 1, Puro Wellness (P) Ltd. (‘Puro’), of its product “Puro Healthy Salt”, which was essentially rock salt and was pink in colour and Tata perceived the commercial to be disparaging white salt in general, C. Hari Shankar, J.*, observed that Puro’s commercial emphasized the natural character of Puro Healthy Salt, owing to its not being bleached, being free of any added chemicals and possessing naturally occurring iodine, as features which rendered it a healthy alternative. The Court held that it could not be said that the Puro’s impugned commercial disparages white salt even generically, much less could it be said that it disparages Tata’s White Salt particularly. The Court further held that Tata had failed to make out any prima facie case justifying interference with continued broadcasting of the impugned commercial.
Background
Tata submitted that Regulation 4(7) of the Food Safety and Standards (Advertising and Claims) Regulations, 2018 (‘the Food Safety Regulations’) did not permit Puro to advertise its salt as “healthy”. The Food Safety Regulations required that if, in advertising a product, words such as “natural”, “fresh”, “pure”, “original”, “traditional”, “authentic”, “genuine” or “real” were used in such a way as to mislead the consumer regarding the nature of the product, a disclaimer would also be entered on the reverse of the pack, stating that the expression concerned was merely being used as a brand name or trade mark, and did not represent the true nature or characteristic of the product. Tata further submitted that the impression conveyed by the impugned commercial, when seen as a whole, was that all white salt, including the plaintiffs’ TATA Salt, was unhealthy. The commercial clearly showed the defendant’s Puro salt alongside white salt, thereby disparaging all white salt in general.
Analysis, Law, and Decision
The Court opined that there was no dispute about the fact that comparative advertisement or for that matter, any form of advertisement, allowed extolling of one’s own product and the advertisement became objectionable only when it made comments about another’s product. The Court further opined that “the highest that could be said, would be that the preference for Puro’s salt, even when white salt was available, was because Puro’s salt was healthy. It was highly debatable as to whether this could result in an inference that white salt was unhealthy”.
The Court opined that what Tata was doing was inferring, from the positive assertions in the impugned commercial, negative inferences regarding Tata’s salt and at a prima facie stage at least, it was difficult to hold that all the positive assertions made with respect to Puro’s Healthy Salt, in the impugned commercial, would inevitably result in a consumer reading, into those assertions, negative aspersions regarding Tata White Salt. The Court relied on Puro Wellness Pvt. Ltd. v. Tata Chemicals Ltd., 2019 SCC OnLine Del 10766 (‘Tata Chemicals Ltd. Case’) and opined that “when the very same allegations and assertions, levelled directly against white salt, had been found by the Division Bench of this Court in Tata Chemicals Ltd. Case (supra) as not to be disparaging of Tata’s product, then how Tata can expect this Court to return a finding of disparagement, especially at a prima facie stage”. Thus, the Court held that Puro having earlier directly levelled the very allegations against which Tata was, in the present case, aggrieved, and the Division Bench of this Court in Tata Chemicals Ltd. Case (supra) having found the said allegations not to be disparaging, Tata, clearly, had no prima facie case to urge.
The Court observed that the assertions which Tata finds so objectionable in the impugned commercial of Puro, regarding Puro’s product being natural, free from chemicals and additives, not processed or bleached and, most importantly, a healthy alternative to common salt, were selling points based on which Tata had actually sold its own Himalayan Pink Salt and it was incumbent on Tata to have disclosed this fact. The Court held that Tata had studiedly concealed these facts from the Court, and it had, thereby, completely disentitled itself to equitable interlocutory injunctive relief.
The Court observed that what was prohibited in Regulation 4(7) of the Food Safety Regulations, was the use of the expressions in a manner which “is likely to mislead consumer as to the nature of food” and thus, opined that the use of “healthy” expression by Puro for its Pink Salt could not be said to mislead the consumer in any way and the use of the expression did not, therefore, violate Regulation 4(7) of the Food Safety Regulations.
The Court observed that Puro’s commercial emphasized the natural character of Puro Healthy Salt, owing to its not being bleached, being free of any added chemicals and possessing naturally occurring iodine, as features which rendered it a healthy alternative. The Court opined that “extolling one’s product, even if it borders on exaggeration, is perfectly permissible in comparative advertising and, so long as it does not contain serious representations of qualitative or quantitative facts, does not even have to pass the test of truth. What is proscribed is denigration of the rival’s product. Declaring one’s product to be superior to the others, or even to all others, is permissible in comparative advertising. It is only where the purported inferiority of others’ products, to one’s own, is attributed to some specific feature, which is described in qualitative or quantitative terms, that the truth of the assertion is required to be established”.
The Court held that it could not be said that the Puro’s impugned commercial disparages white salt even generically, much less could it be said that it disparages Tata’s White Salt particularly. The Court observed that the impugned commercial did not, directly, or indirectly, propose to state that Puro Healthy Salt was preferable over white salt, much less did it provide any reasons in that regard.
The Court held that the impugned commercial was, therefore, well within the boundaries of what was permissible in comparative advertising. The Court opined that if a commercial as innocuous as this was to be injuncted, one might as well completely do away with the concept of comparative advertising altogether as it was difficult to envisage comparative advertising being undertaken in a manner which was more innocuous than what Puro had done.
The Court further held that Tata had failed to make out any prima facie case justifying interference with continued broadcasting of the impugned commercial. The Court further held that Tata also stands disentitled to any injunctive interlocutory relief as, on merits, the case was squarely covered against Tata by the decision of Tata Chemicals Ltd. Case (supra), and also because the plaint completely suppresses the fact that the very assertions, in the impugned Puro commercial, which Tata finds disparaging of white salt, had been used by Tata itself in selling its Himalayan Pink Salt, to tout it as a “healthy alternative” to white salt.
[Tata Sons (P) Ltd. v. Puro Wellness (P) Ltd., 2023 SCC OnLine Del 6338, decided on 10-10-2023]
*Judgment authored by: Justice C. Hari Shankar
Advocates who appeared in this case :
For the Plaintiffs: Abhishek Manu Singhvi, Rajiv Nayar, Senior Advocates; Pravin Anand, Achuthan Sreekumar, Zafeer Ahmed, Rohit Bansal, Apoorva Prasad R., Advocates
For the Defendants: Akhil Sibal, Senior Advocate; Nishad Nadkarni, Ankur Sangal, Raghu Vinayak Sinha, Khushboo Jhunjhunwala, Shaurya Pandey, Asavari Jain, Jaanvi Chopra, Advocates
