Mumbai: Observing that an advertiser cannot use the right to free speech to disparage, belittle and/or malign the product of the competitor, the Bombay High Court on Tuesday prohibited German personal care company Sebamed from broadcasting its advertisement wherein it compared its cleansing soap with Rin detergent.
A bench of Justice Colabawalla, however, allowed the company to telecast its ads comparing it with Dove soap of the Hindustan Unilever Limited (HUL).
"In a democratic economy, free flow of commercial information is indispensable. There cannot be honest and economical marketing to the public at large without they being educated by the information disseminated through advertisements," Justice Colabawalla observed.
The judge further said that if the manner and the message of the ad belittles, ridicules or condemns the product of the competitor, then, it amounts to disparaging.
"However, on the other hand, the message and the manner of the ad is only to show one’s product as being better or the best, without denigrating the other’s product, then it is not actionable," the judge noted.
While scrutinising the ads in question, Justice Colabawalla said that as far as the ad wherein, Sebamed compares its product with HUL’s Dove soap, "I do not think that the same is in any way disparaging of the Dove soap. All that it does is that it points out to the public that the pH level of the Dove soap is 7 whereas the pH level of the Sebamed is 5.5, which is ideal for sensitive skin."
However, while comparing the ad wherein Sebamed compares its soap with Lux and claims that the same has the pH level just the way that of Rin detergent.
"This ad disparages the Lux soap by insinuating that the use of this soap is as bad or equivalent to using the detergent soap Rin on the skin. This would clearly be disparaging the Lux soap as it creates an impression in the mind of the public that using the Lux soap on your skin is equivalent to using the RIN detergent on your skin," the HC held.
Meanwhile, in its order, the bench further held that the pH value of a soap is not the sole determinant factor to ascertain whether the soap is mild or harsh on the skin and it certainly cannot be equated with a washing detergent, whose composition is quite different from that of a bathing soap.