Bombay High Court in HUL vs Sebamed: No fault in Sebamed's advertisements
The Bombay High Court on 20th January, 2021 by a single judge, Justice B.P. Colabawalla in the case of Hindustan Unilever Limited (HUL) vs. Sebamed, found 'nothing disparaging' in Sebamed's soap banner which merely reflected that it was better than Dove soap, manufactured by HUL (plaintiff). In some relief for HUL, too, the High Court directed USV Private Limited to drop the reference to Lux and Pears, to Rin or any other detergent bar in its ads.
According to Justice Colabawalla, advertising by USV comparing Lux and Pears to a washing detergent and its pH levels "not only disparages and belittles plaintiff's soaps but misleads the public" into believing that they are "as harsh on your skin as a washing detergent". The Judge said it "cannot be permitted as pH level is not the sole determinant for a soap's mildness". But the High Court asserted that, if the reference to Rin is dropped, the ads can still be aired.
Sebamed stated that it stands by advertising claims and will back up it with data. It also stated that the campaign was not intended to denigrate a competitor's brand or brands and that the company's initiative has been to build awareness about the right pH value for the skin.
Virag Tulzapurkar, appearing for HUL opposed to USV using pH levels in its ads as they were misleading the viewers. Senior counsel Venkatesh Dhond, for USV, emphasized that the company would replace the words 'safe' and 'not safe' in its website to 'ideal' and 'not ideal' when referring to pH scale for soap. Consequently, the High Court accepted Dhond's statement as an 'undertaking' and directed the changes to be made.
The Court recorded the submissions made by both the companies around the hostile advertising campaign launched by Sebamed on 8thJanuary, comparing HUL's Lux and Dove to detergent brand Rin, and claiming that the beauty soaps did not maintain the optimal 5.5 pH level meant for sensitive skin. Sebamed ads claimed that its cleansing bar had the perfect pH for sensitive skin.
On 11th January 2021, Justice Colabawalla passed an urgent ex-parte order which fully restrained the 'disparaging' advertising by USV by picturing HUL's well-known soaps — Lux, Pears, Dove and its detergent soap Rin.
Following this, USV filed its application and referred to a caveat it had filed. Subsequently, the High Court vacated its 11thJanuary, 2021 order and heard the matter afresh from 12 January-13 January, 2021 and passed an interim order on 19th January, 2021. The High Court allowed the advertisement, without any changes.
The Court said that in USV's other ads comparing Sebamed with Lux and Pears, it was allowed to air and/or display the two advertisements without any reference to the Rin detergent bar or any other (washing) detergent soap. They can be aired in a modified form and similarly hoardings and any online adverts by USV too must drop the detergent reference when comparing Lux or Pears, added the Court.
Rohan Kadam, Advocate appearing for USV on 19th January, 2021before the Bombay High Court had sought for a stay order, however the Court said USV cannot be allowed to continue to advertise "in a manner which disparages" the HUL products but, Justice Colabawalla gave USV ten days "to pull down any physical hoardings and modify them to ensure compliance" stated in its order.
The High Court further listed the matter to 16thMarch, 2021 for further hearing.