When The Claim Of Disparaging Advertising Gets Far Too Stretched!

In a recent case, Tata Sons Pvt. Ltd. and Tata Consumer Products Ltd. (“Plaintiffs”) brought a suit before the Hon’ble Delhi High Court to restrain the airing of an allegedly disparaging advertisement of the Defendant, Puro Wellness Pvt. Ltd., pertaining to its product “Puro Healthy Salt”, which was a pink coloured rock salt. The plaintiffs claimed that the advertisement of the defendant was disparaging white salt in general. Since it was a major player in the white salt market, the ad was offensive and effectively disparaged its product as well.

The Plaintiffs claimed that the impression conveyed by the impugned commercial, seen as a whole, was that all white salt, impliedly 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. It was also alleged by the Plaintiffs that describing any food item as “healthy” was misleading and prohibited under the Food Safety Regulations.

Further, stating that all white salt was bleached using hazardous chemicals, impliedly including TATA Salt, and that “Puro” did not add chemicals to its salt was misleading as salt is never bleached and adding the prescribed quantity of anti-caking agent to salt to make it free flowing was anyway permissible, and even iodisation of white salt was mandatory under FSSAI Regulations. It was pointed out that the impugned advertisement did not specifically refer to TATA Salt of the Plaintiffs. However, as it commanded a 34% market share of the white salt market, the ad was most injurious to the Plaintiffs. In view of the above, it was prayed that till the disposal of the suit, the defendant was to be restrained from continuing to air the impugned advertisement.

The defendant, in its defence, argued that even the Plaintiffs manufactured and sold their own brand of “Himalayan Pink Salt”, in which the attributes of their products were described in precisely the same terms in which the defendant described its product in the impugned ad, and that the plaintiffs concealed this fact. It was also contended by the defendant that the Plaintiffs could not seek to restrain it from using the term “Healthy” as part of its branding, as the defendant had registered in its favour “Puro Healthy Salt” as a trademark under the Trade Marks Act, 1999 since June 14, 2018.

It was further averred that the Plaintiffs’ reliance on Food Safety Regulations was misconceived as the defendant did not employ any of the expressions that were prohibited and also since the prohibition only applied to the use of such expressions when they were likely to mislead consumers as to the nature of the food. No such misleading impression was conveyed by any term or expression used by the defendant in its commercial. The Court’s attention was also drawn to the literature issued by the Ministry of Ayush, Government of India, which advised the consumption of rock salt over white salt, as the former was healthy and the latter unhealthy. Thus, rock salt, as a matter of fact, had been considered healthy and was always promoted as such.

The defendant also argued that the standard to be established to succeed in a claim of class disparagement was much higher than in cases where a product was specifically disparaged, as the Court had additionally to satisfy itself that disparagement of the class, assuming it was found to exist, resulted in disparagement of the Plaintiffs’ products. It was also contended that although the Plaintiffs could claim not to bleach their salt, they could not lay any such claim with respect to all other manufacturers of white salt, which constituted nearly 70% of the market. The attempt of the defendant in the commercial was not to run down white salt but to emphasise the fact that the rock salt made and sold by it was natural. The commercial was, therefore, “comparison positive”, not “comparison negative”.

After hearing both parties, the Court held and observed that extolling one’s product, even if it bordered on exaggeration, was perfectly permissible in comparative advertising. As long as it did not contain serious representations of qualitative or quantitative facts, it did not have to pass the test of truth. However, the denigration of the rival’s product was prohibited. Declaring one’s product to be superior to the other’s, or even to all others’, was permissible in comparative advertising. It is only where the purported inferiority of others’ products to one’s own was attributed to some specific feature, which was described in qualitative or quantitative terms, that the truth of the assertion was required to be established.

It was further held that in cases where commercials and advertisements are called into question as being disparaging, what weighed in the balance was the right to free speech and to promote one’s product in the manner one deemed appropriate. This was an essential feature of the right to trade and business. A competitor must not be permitted, by seeking recourse to litigative measures or by approaching the 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. The highest that he could seek is that the rival does not, in puffing up his product, resort to serious misrepresentations of fact.

In view of the above, the Court did not find anything questionable about the advertisement issued by the defendant. The Court specifically observed that the defendant made no misrepresentation of fact regarding Puro Healthy Salt. It was further observed that the Plaintiffs were erroneously reading into the impugned advertisement that any adverse comments, made impliedly or otherwise, regarding white salt in general, were targeted at or involved the Plaintiffs’ Tata White Salt. The Court observed that the principles enunciated in binding precedential decisions did not permit or justify any such inferences being drawn as a basis to seek an injunction on the ground of disparagement.

Thus, the Court held that the defendant’s advertisement was well within the boundaries of what was permissible in comparative advertising. The Court concluded that the Plaintiffs had failed to make out a prima facie case justifying any interference with the continued broadcasting of the defendant’s ad. The Court emphasised that the plaintiffs were disentitled to any injunctive, interlocutory relief also because they based their plaint on an assertion of the defendant in the impugned ad that its product was “healthy”, especially when the plaintiffs had themselves made similar assertions in their own ads for ‘Himalayan Pink Salt’.

This, the Court noted, was even suppressed in the plaint. It was observed that the very same features of the plaintiffs’ ‘Himalayan Pink Salt’ were extolled in their own advertisements, which have been emphasised by the defendant in the impugned advertisement. It was held and observed that touting one’s own salt as a “healthy alternative” to white salt by the plaintiffs disentitled them from obtaining any interlocutory injunctive relief, even in equity, in addition to the merits of the case, which were also not in favour of the Plaintiffs. As a result, the Court dismissed the Plaintiff’s application for interim injunction.

The above decision gives clarity on when an advertisement of a competitor can be adjudged as disparaging, and injunctive relief could follow. It helps to define the threshold of what may actually be considered disparaging and what fairly falls within acceptable limits.