TATA SONS PRIVATE LIMITED & ANR. vs PURO WELLNESS PRIVATE LIMITED & ANR.

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 4 October 2023
Pronounced on: 10 October 2023

+ CS(OS) 582/2023
TATA SONS PRIVATE LIMITED & ANR. ….. Plaintiffs
Through: Dr. Abhishek Manu Singhvi and Mr. Rajiv Nayar, Sr. Advocates with Mr. Pravin Anand, Mr. Achuthan Sreekumar, Mr. Zafeer Ahmed, Mr. Rohit Bansal and Ms. Apoorva Prasad R., Advs.

versus

PURO WELLNESS PRIVATE LIMITED & ANR . Defendants
Through: Mr. Akhil Sibal, Sr. Advocate with Mr. Nishad Nadkarni, Mr. Ankur Sangal, Mr. Raghu Vinayak Sinha, Ms. Khushboo Jhunjhunwala, Mr. Shaurya Pandey, Ms. Asavari Jain and Ms. Jaanvi Chopra, Advs. for Defendant 1
CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR
J U D G M E N T

IA 18226/2023 (Order XXXIX Rules 1 and 2 of the CPC)

1. The plaintiffs, Tata Sons Pvt. Ltd. and Tata Consumer Products Ltd. (collectively “Tata”) are aggrieved by a commercial aired by Defendant 1, Puro Wellness Pvt. Ltd. (“Puro”), of its product “Puro Healthy Salt”, which is essentially rock salt and is pink in colour. Tata perceives the commercial to be disparaging white salt in general. As a major player in the white salt market, Tata seeks an injunction against Puro from continuing to air the offending commercial.

2. For no legitimate reason, Tata has also impleaded Ms. Keerthy Suresh, an actress who intones the words, in the commercial, which Tata finds so offensive, as the second defendant. Ms. Suresh has merely provided her professional services to Puro, and I see no justification for involving her in this litigation. Mr. Pravin Anand, very fairly, agreed to her deletion from the array of parties. Accordingly, Ms. Suresh stands deleted from the array of parties. Tata is directed to place on record an amended memo of parties within a week.

3. The storyboard of the offending commercial is as under:

Puro Healthy Salt – Kitchen

Ms Suresh: Placing Puro Healthy Salt on the table

Lady 2: Arre, Ghar me safed namak toh hai, phir Puro Kyu? (There is white salt in the house, then why Puro?)

Ms Suresh: Kyunki Puro Healthy hai (Because Puro is healthy)

Ms Suresh: Healthy? Kaise? (Healthy? How?)

Ms Suresh: Puro ko bleach karke safed nahi kiya jaata (Puro is not whitened by bleaching.)

Lady 2: Accha (OK)

Statement appearing on screen: Puro Healthy Salt is 100% natural, unrefined, and does not contain any additives, anti-caking agents, chemical preservatives, coloring/bleaching agents of any kind.

Ms Suresh: Free Flowing banane ke liye, chemicals nahin milaya jaate (Chemicals are not added to make it free flowing.)

Statement appearing on screen: Puro Healthy Salt is 100% natural, unrefined, and does not contain any additives, anti-caking agents, chemical preservatives, coloring/bleaching agents of any kind.

Ms Suresh: Aur Puro Mein hai kudrati Iodine, upar se nahi milaya jaata. (And Puro contains natural iodine, it is not added separately to it)

Statement appearing on screen: Puro Healthy Salt is 100% natural, unrefined, and does not contain any additives, anti-caking agents, chemical preservatives, coloring/bleaching agents of any kind.

Lady 2: Superb

Narrator: Puro Healthy Salt

Lady 2: Hamare Ghar toh Puro aagaya (Puro has come to our house)

Ms Suresh: Kya aap ke ghar aaya? (Has it come to your house?)

4. This suit was taken up for preliminary hearing by this bench on 26 September 2023. Summons were issued in the suit and notice was issued in IA 18226/2023. Given the nature of the dispute, Puro was directed to file a reply to the present application on or before 2 October 2023. Learned Counsel for Tata waived the requirement of a rejoinder to the proposed reply of Puro, for the purposes of hearing and disposal of the present application.

5. As directed, Puro has filed a reply to the present application. Dr. Singhvi advanced arguments on behalf of Tata, to which Mr. Akhil Sibal, learned Senior Counsel for Puro, responded. Mid-response by Mr. Sibal, Tata sought to place on record a rejoinder with additional documents. Serious exception was taken by Mr. Sibal, drawing attention to the fact that Tata had, on 26 September 2023, waived its right to file a rejoinder in the present application. In any case, submitted Mr. Sibal, filing of a rejoinder, mid-submissions by the defendant, was unknown. In case Tata desired to introduce a rejoinder in such a fashion, he submitted that he was entitled to go through the rejoinder and modify or advance his further submissions accordingly. Mr. Pravin Anand, thereupon, agreed not to press the submissions in rejoinder, or rely on the documents filed with the rejoinder, for the purposes of the present application. Arguments continued on the said understanding. Submissions in rejoinder were advanced, on behalf of Tata, by Dr. Singhvi and Mr. Rajiv Nayar, learned Senior Counsels and Mr. Pravin Anand.

Rival Submissions

Opening submissions by Dr. Singhvi

6. Tata’s objections to the impugned commercial, as articulated by Dr. Abhishek Manu Singhvi, learned Senior Counsel, are as follows:

(i) Regulation 4(7)1 of the Food Safety and Standards (Advertising and Claims) Regulations, 2018 (“the Food Safety Regulations”) do not permit Puro to advertise its salt as “healthy”. They require that if, in advertising a product, words such as “natural”, “fresh”, “pure”, “original”, “traditional”, “authentic”, “genuine” or “real” are 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.

(ii) Equally, the description of any food item as “healthy” stands proscribed by Regulation 8(3)2 of the Food Safety Regulations.

(iii) The impression conveyed by the impugned commercial, when seen as a whole, is that all white salt, including the plaintiffs’ TATA Salt, is unhealthy. The commercial clearly showed the defendant’s Puro salt alongside white salt, thereby disparaging all white salt in general.

(iv) The impugned commercial also conveyed a misleading impression that all white salt, including TATA Salt, was bleached using hazardous chemicals. This is entirely false. Salt is never bleached. Bleaching is a technical process, involving oxidation through agents such as chlorine or hydrogen peroxide, none of which is used in the production of white salt, least of all by Tata.

(v) The impugned commercial states that Puro does not add chemicals to its salt to make it free flowing. The implication is that white salt manufacturers, including Tata, do so. This is bound to instill a feeling of apprehension and fear in consumers, who would believe that consuming white salt would entail ingestion of harmful chemicals. The Food Safety and Standard (Food Products Standard and Food Additives) Regulations, 2011 (“the FSSAI Regulations”), in fact, permit addition of prescribed quantities of anti-caking agent, to make the salt free flowing.

(vi) The assertion, in the impugned commercial, that Puro salt contains natural iodine and that no extraneous iodine was added to it, also conveys a misleading impression. The FSSAI Regulations require iodisation of white salt. Other salts, such as black salt and rock salt need not be iodised. Iodisation is, therefore, mandatory, and does not render the white salt harmful or unhealthy in any manner. Iodisation is necessary to avoid disorders arising out of iodine-deficiency, such as goitre.

(vii) Though the impugned commercial does not specifically refer to Tata Salt, Dr. Singhvi submits that, as a player commanding 34% of the white salt market share, the impugned commercial is most injurious to Tata. Tata, therefore, possesses the necessary locus to assail the impugned commercial, as an impermissible example of class disparagement. Puffery, submits Dr. Singhvi, is permissible in advertisement, and puffery also includes, in its sweep, exaggerated claims regarding one’s product. What is impermissible is denigration of another’s product, especially where such denigration is premised on untrue and misleading statements.

7. Dr. Singhvi prays, therefore, that, pending disposal of the suit, Puro be restrained from continuing to air or broadcast the impugned commercial.

Submissions by Mr. Akhil Sibal in reply

8. Mr. Akhil Sibal, learned Senior Counsel for Puro submits, in response, thus:

(i) Tata, too, manufactures and sells its own brand of “Himalayan Pink Salt”, in which the attributes of its product are described in precisely the same terms in which Puro describes its product in the impugned commercial. What is sauce for the goose, therefore, is sauce for the gander.

(ii) This fact has been concealed in the suit. Tata has, thereby, rendered itself ineligible to any equitable interlocutory relief. In fact, the stand taken by Tata is, in a sense, hypocritical.

(iii) (Apropos an intervention, at this point, by Mr. Pravin Anand, to the effect that the statement on the package of Himalayan Pink Salt was made by Big Basket, to whom Tata has issued a legal notice, though merely a day earlier) Issuance of a notice to Big Basket, at this point, is clearly an afterthought. Moreover, Tata having foregone, on 26 September 2023, its right to file rejoinder to Puro’s reply, Puro’s assertions, in the reply to the present application, have to be regarded as admitted. In any event, issuance of a legal notice at this point can have no consequence, as, by now, Tata must have profited by large-scale sale of its “Himalayan Pink Salt”.

(iv) The parties, between them, have a history. Identical commercials aired by Puro, in which identical comments on Tata’s white salt were made by Puro, formed subject matter of CS (OS) 403/2018 (Tata Chemicals Ltd v. Puro Wellness Pvt Ltd). In that case, in fact, there was no insinuation, and the comments were far more direct. In other words, Mr. Sibal submits that what Tata perceives, from the impugned commercial, to be adverse observations regarding white salt, were directly made by Puro in the commercials forming subject matter of CS (OS) 403/2018. By judgment dated 15 March 20193, a learned Single Judge of this Court held the commercials of Puro to be disparaging of white salt and, therefore, injuncted further broadcasting or transmission of the commercials. This decision was, however, reversed by the Division Bench of this Court in its judgment dated 31 October 20194 in FAO (OS) 64/2019 (Puro Wellness Pvt Ltd v. Tata Chemicals Ltd, hereinafter “Puro-I”). Though the said decision is presently under challenge before the Supreme Court, neither has the Supreme Court issued notice, not passed any interlocutory orders in the SLP. The findings in the judgment of the Division Bench apply, on all fours, to the present dispute. In fact, contends Mr. Sibal, Tata is essentially seeking to re-argue the contentions which were advanced before the Division Bench, and which failed to find favour with this Court.

(v) Tata’s contention that Puro cannot advertise its products as “healthy” is, in fact, in the teeth of the concluding observations in the judgment of the learned Single Judge in CS (OS) 403/2018, which reads thus, and which remained undisturbed by the Division Bench:
“It is however clarified that the Defendant is entitled to promote its own product – Puro Healthy Salt as a salt which is natural and healthy.”

(vi) Tata’s reliance on Regulation 4(7)1 of the Food Safety Regulations is misconceived. Puro does not employ any of the expressions noted in the said sub-Regulation. Moreover, Regulation 4(7)1 applies only where the use of the said expression is likely to mislead consumers as to the nature of the food. No such misleading impression was conveyed by any expression used by Puro in its commercial.

(vii) Regulation 8(3) of the Food Safety Regulations is also being read out of context. The sub-Regulation is not even applicable in the present case, given the circumstances to which Regulation 85 itself applies. Puro does not make any claim to dietary guidelines or healthy diets, in which circumstance alone Regulation 8, with its sub-Regulations, would apply.

(viii) There are no express statements of fact, in the impugned commercial, about white salt, much less about Tata’s white salt. All express statements of fact are with respect to Puro’s product. Mr. Sibal reiterates that this is in stark contradistinction to the commercials which constituted subject matter of CS (OS) 403/2018, which made express adverse comments about white salt, and which, nonetheless, were not found, by the Division Bench, to justify any interlocutory interdiction.

(ix) Rock salt is healthy, and is always promoted as such. Mr. Sibal draws my attention, in this context, to literature issued by the Ministry of Ayush, Government of India, which advises increase in consumption of rock salt and avoiding consumption of white salt, as the former is healthy and the latter unhealthy.

(x) Tata has chosen to allege, against Puro, class disparagement. The standard to be established to succeed in a claim of class disparagement is much higher than in cases where a product is specifically disparaged, as the Court has additionally to satisfy itself that disparagement of the class – assuming it is found to exist – results in disparagement of the plaintiff’s product, or in adverse consequences to the plaintiff.

(xi) Puro has, in its commercial, merely highlighted positive features of its product which, according to Puro, are relevant. All assertions in the commercial are true. There is no negative statement about Tata’s white salt. All that the commercial aims to do is, therefore, to provide information to the consumer about “Puro Healthy Salt”, leaving the consumer to make an informed choice.

(xii) The suit is highly belated. The issue being raised by Tata is not new. Puro has, apropos white salt, been making similar assertions in its product commercials, for several years. Mr. Sibal drew the attention of the Court to earlier commercials of “Puro Healthy Salt” which, though they did not particularly compare “Puro Healthy Salt” with white salt, nonetheless contained the following caption at the foot of the commercials, towards their conclusion:
“Puro Healthy Salt is 100% natural, unrefined and does not contain any additives, anti-caking agents, chemical preservatives, colouring/bleaching agents of any kind.”

(xiii) The impugned commercial merely conformed to the manner in which rock salt was customarily advertised and promoted. Mr. Sibal invited attention to advertisements for rock salt by various other manufacturers which, he submits, are similar to the impugned commercial. There is no reason, therefore, for Tata to selectively take exception to Puro.

(xiv) Mr. Sibal also invited attention to literature which set out the manner in which white table salt is prepared. According to Mr. Sibal, consumers have, since long, been deceived into believing that white salt is pure – an impression which draws on the traditional equation of white with purity. In actual fact, submits Mr. Sibal, pure sea salt is not white. It is whitened, to achieve its traditional snow white complexion, after subjecting it to bleaching and extensive treatment which denudes it of useful chemicals and leaves behind sodium chloride.

(xv) Every consumer has a right to be informed of the product that he consumes. So long as the assertions in the impugned commercial are not untrue, they are protected by the right of the consumer to be informed.

(xvi) Tata has erroneously sought to contend that Puro alleged bleaching of salt, by white salt manufacturers, by addition of harmful chemicals. There is no such insinuation in the impugned commercial. Bleaching is merely whitening. However, in the process of whitening and other treatment of sea salt, adverse effects result.

(xvii) Mr. Sibal also placed reliance on a pre-feasibility report with respect to the soda ash project of Tata, particularly to the reference, in the said Report, to the fact that the complex consists of various plants, including manufacturing of soda ash, sodium bicarbonate, caustic soda-liquid chlorine-hydrochloric acid, bromine, vacuum evaporated salt and clinker/cement. He has drawn attention to other literature, which suggests that soda ash bleaches. From these, Mr. Sibal seeks to draw the conclusion that, by using soda ash, Tata bleaches sea salt in order to produce its white salt.

(xviii) In any event, Tata can claim not to bleach its salt, but cannot lay any such claim with respect to all other manufacturers of white salt, which admittedly constitute 70% of the market.

(xix) Tata cannot, in any case, contend that Puro is disentitled from using “Healthy” as part of its name, as Puro has registered, in its favour, “Puro Healthy Salt” as a trade mark under the Trade Marks Act, 1999, since 14 June 2018.

(xx) The storyboard of the impugned commercial does not, in any manner, denigrate or disparage white salt, much less white salt produced by Tata. Mr. Sibal took me through the commercial, frame by frame. The response, by Ms. Keerthy Suresh, to the initial query as to why, when white salt was available, Puro was being used, “Kyunki Puro healthy hai” cannot be said to be disparaging, in any manner, of white salt. It merely declares that Puro was being used because Puro was healthy. The subsequent declarations, in the commercial, only seek to justify the initial response, by pointing out why Puro is healthy. At the highest, these declarations would amount only to puffery, which is permissible in comparative advertising. This is clear from the fact that, before the various declarations that follow, the other actress queries “Healthy? Kaise?” All statements thereafter, therefore, pertained only to Puro, and not to Tata or its white salt.

(xxi) It is not Tata’s contention that any of the said representations is false. The attempt of Puro, in the commercial, was not to run down white salt, but to emphasise the fact that the rock salt made and sold by Puro was natural. The commercial was, therefore, “comparison positive”, not “comparison negative”. Mr. Sibal has sought to analogise the facts in the present case to those which were before me in Reckitt Benckiser (India) Pvt Ltd v. Wipro Enterprises (P) Ltd6 (“Reckitt v Wipro”, hereinafter).

(xxii) In this context, Mr. Sibal submits that there is no decision in which, in the absence of any direct implication of the plaintiff’s product as inferior in any manner, or any direct disparagement of the plaintiff’s product, the Court has proceeded to grant an injunction.

(xxiii) Tata, submits Mr. Sibal, is being hypersensitive. The inference, that Tata seeks to draw from the declaration in the impugned commercial that Puro salt is healthy, and that white salt is unhealthy, he submits, does not automatically follow.

(xxiv) Similarly, from the recital, in the impugned commercial, that Puro salt does not contain additives, Tata is seeking, without justification, to infer an allegation that adding additives is dangerous.

(xxv) Referring to the objectionable features of the impugned commercial, as enumerated in para 26 of the plaint, Mr. Sibal submits that the inferences that (a) “by using the word ‘bleached’, the Defendants are giving an impression that their salt is not processed by the addition of strong and harmful chemicals and by necessary implication, they are trying to convey as if all white salt, including the Plaintiffs’ TATA SALT is run through strong hazardous chemicals for turning the salt white”, “the Defendants are stating that hazardous, strong and harmful chemicals are not added to make their salt free flowing and by necessary implication they are trying to convey that all white salt, including the Plaintiff’s TATA SALT contains hazardous chemicals which are added to make it free flow”, and (c) by claiming that the defendants do not add iodine separately to their product, “by necessary implication, the Defendants are trying to give the impression that all white salt which are mandatorily iodised are bad and unfit for consumption and hazardous”, do not actually flow from what is stated in the impugned commercial. In fact, Tata has even sought to place words in the mouth of Puro, by averring that Puro has, in the impugned commercial, stated “that hazardous, strong and harmful chemicals are not added to make their salt free flow”, whereas no such words have been used by Puro.

9. In support of his submissions, Mr. Sibal cited various judicial precedents.

10. From the judgment of the Division Bench of this Court in Dabur India Ltd v. Colortek Meghalaya Pvt Ltd7 (“Dabur v. Colortek” hereinafter), he derives the proposition that truth is an absolute defence to a charge of disparagement. He relies, in this context, on paras 13 to 19 of Puro’s reply to the present application, in which it is averred that naturally occurring salt is not snow white, and white salt achieves its white colour not by removing impurities, but by eliminating naturally occurring minerals, carrying health benefits, from sea salt; in this process, additives in the nature of anti-caking agents are added; the white salt which results is merely sodium chloride with added iodine, with no minerals whatsoever; in arriving at this salt from naturally occurring salt, brine is heated, resulting in loss of all naturally present minerals and changes colour to bright white, and anticaking agents and iodine are added externally; the salt is, therefore, actually bleached by a chemical process, and that these facts are vouchsafed by the pre-feasibility report relating to Tata’s Soda Ash, Cement and Captive Co Generation Power Plant. Tata having opted, voluntarily, not to file any rejoinder to these assertions, they had to be treated as admitted.

11. Dabur India Ltd v. Emami Ltd8 (“Dabur v Emami” hereinafter) is a case, submits Mr. Sibal, in which there was a far more direct attack than in the present case. The product under attack, by Emami, was “Chyawanprash”. Dabur was not specifically named. Dabur’s contention was that it was the market leader in Chyawanprash and that, therefore, the commercial was in effect an attack by proxy. The message that was sought to be conveyed was that 50% of Chyawanprash was sugar and was, therefore, unhealthy, whereas Emami’s “Chyawanprashad” had no sugar and was, therefore, healthy. Dabur sought to contend that Chyawanprash, as an Ayurvedic preparation, had necessarily to contain sugar. Despite this, submits Mr. Sibal, this Court did not find Emami’s commercial to be disparaging of Dabur’s Chyawanprash. Applying the approach adopted by the Division Bench in the said case would, submits Mr. Sibal, required the Court to, in the present case as well, hold that there is no disparagement.

12. Similar, submits Mr. Sibal, is the position which emerges from the judgments of the Division Bench of this Court in Colgate Palmolive Co. v. Hindustan Unilever Ltd9 (“Colgate v HUL” hereinafter, from which Mr. Sibal cites para 27), the judgment of coordinate single benches of this Court in Marico Ltd v. Dabur India Ltd10 (from which Mr. Sibal cites paras 40, 41, 79, 83 to 85 and 87), Dabur India Ltd v. Colgate Palmolive India Ltd11 (“Dabur v Colgate” hereinafter) and Reckitt v. Wipro6 (rendered by me), Karamchand Appliances Pvt Ltd v. Sh. Adhikari Brothers12 (from which Mr. Sibal cites paras 4 and 25 to 31), Dabur India Ltd v. Emami Ltd13 (“Dabur v. Emami-II”) hereinafter, from which Mr. Sibal cites paras 3, 9 and 10) and the judgment of a Division Bench of the High Court of Bombay in Gujarat Cooperative Milk Marketing Federation Ltd v. Hindustan Unilever Ltd14 (from which Mr. Sibal cites paras 24, 30 and 31).

13. Ergo, submits Mr. Sibal, there is no merit in the present application, which deserves, therefore, to be dismissed. He prays accordingly.

Submissions of Dr. Singhvi, Mr. Nayar and Mr. Pravin Anand in rejoinder

14. Between them, Dr. Singhvi, Mr. Nayar and Mr. Pravin Anand advanced the following submissions in rejoinder:

(i) The judgment of the Division Bench of this Court in Puro-I cannot impact the outcome of the present litigation. In disparagement matters, each commercial is different and each case is distinct. One case cannot act as a precedent for another. Ultimately, in every case, what matters is the “look and feel” of the commercial in dispute.

(ii) Besides, the judgment of the Division Bench in Puro-I only reversed the decision of the learned Single Judge apropos the three commercials featuring Mr. Anil Kapoor. Circulation of the pamphlet advertisement, which was also challenged by Tata, was permitted only subject to deletion of the image depicted therein. Besides, when the matter was carried to the Supreme Court, Tata did not prosecute the appeal only because Puro was desirous of settling the matter. It cannot, therefore, be said that the decision of the Division Bench in Puro-I operates as a binding precedent.

(iii) Ultimately, as held by the learned Single Judge of this Court in Dabur v. Emami8, the correct test to apply was the following:

“…..The paramount consideration for the Court to discern disparagement is to go into the heart of the matter and see the impact the impression the advertisements create. This simple aspect should not be made complex. I am not suggesting that Court should take a view instinctively. Of course, in order to decide the question, the Court would have to reflect, enquire and assimilate all the relevant factors, but the crux of the matter is always the intent and effect, that I have described as “look and feel”. The Courts, guided by principles enunciated in judicial precedents, should test the merits of the claims of challenge by evaluation of the message and effect. The comparative advertising campaign should thus be ‘comparison positive’.”

(iv) Marico10 is distinguishable, as the Court, in that case, relied on prior orders passed by the High Court of Bombay and essentially found the plaintiff to be guilty of forum shopping and suppression of fact. If anything, para 77 of the judgment recognises the right of a market leader to sue for class disparagement even if the commercial or advertisement in question did not identify it, by holding that “if a class of goods are disparaged by an advertisement, a leader or person having substantial stake in the generic disparaged goods can maintain an action against the advertisement”.

(v) The “look and feel” of the allegedly disparaging commercial could not be discerned by viewing it frame by frame. What matters is the overall impression that it seeks to convey. The overall impression that Puro’s impugned commercial conveys to the consumer, in the present case, is clearly that white salt is to be avoided, as it is bleached, contains artificial harmful chemicals and iodine. This, therefore, is not a case of mere puffery but of conscious generic disparagement of white salt.

(vi) Mr. Sibal’s contention that the assertions made by Puro in the impugned commercial are truthful is not correct as (a) the white salt made and sold by Tata is not bleached, (b) iodisation is a statutory mandate, whereas the impugned commercial conveys the impression that it is something to be avoided, (c) no preservatives were added in white salt, before it was released in the market, and (d) the only “artificial chemical” which was added was anti-caking agent, which was a permissible additive, to render the salt free-flowing.

(vii) Mr. Sibal’s reliance on random literature, to convey the impression that white salt was unhealthy in any manner, was completely misplaced. The opinion expressed in the articles cited by Mr. Sibal were merely opinions, and nothing more.

(viii) Citing paras 19 and 23 of Dabur v. Colortek7, learned Senior Counsel contend that the present case is one of “clever advertising”. Dr. Singhvi carried the point a notch further, by submitting that Mr. Sibal is not correct in his assertion that the impugned commercial does not name Tata’s white salt. “Naming” is merely a form of identification. As the market leader in white salt, commanding 30% of the market, with the next player Nirma having a mere 5%, it was clear that the reference to white salt was an indirect allusion to Tata. Tata was, therefore, effectively “named by proxy”. The reference to “white salt” in the impugned commercial could, therefore, be treated as a reference to Tata’s white salt. By resorting to such clever advertising, and indirectly referring to the plaintiff’s product without directly making allusion thereto, it is submitted that Puro cannot escape the consequences of disparagement.

(ix) The reference, by Mr. Sibal, to the soda ash manufacturing facility of Tata is completely off the point. The soda ash manufacturing line is different from the white salt manufacturing line. The paras referenced by Mr. Sibal themselves indicate that the salt that emerges during the production of soda ash is vacuum evaporated salt. It is not sold in the market as such.

(x) Tata does not add any chemicals, and does not bleach the salt before it is sold. Bleaching, per se, involves addition of chemicals. What Tata does is whitening of the sea salt, by vacuum drying and evaporation. No chemicals figure in the process.

(xi) Iodisation of white salt, before it is sold, is mandatory under the applicable Regulations. The impugned commercial seeks to portray iodisation, by adding of iodine, as deleterious to health. This is a completely misleading impression.

(xii) The difference between the impugned commercial in the present case and earlier commercials which may also have targeted white salt is the crucial initial query posed to Ms. Suresh – “Phir Puro kyon?”15 All that follows thereafter is a response to the query. The attempt to denigrate white salt, generically, it is apparent. Though there is no overt reference, in the impugned commercial, to Tata’s white salt, the attempt at targeting Tata is apparent, as Tata is indisputably the market leader in white salt, commanding 30% of the market.

(xiii) The purpose of the impugned commercial is critical to the issue at hand. In the guise of extolling the virtues of its product, Puro cannot be permitted, in law, to run down, denigrate or disparage white salt as a product in general. This amounts to class disparagement, which the law does not permit. It crosses the legitimate boundaries of comparative advertising.

15. Learned Counsel, therefore, reiterated their prayer for a blanket injunction against airing, transmission of broadcasting of the impugned Puro commercial.

Analysis

Impact of judgment in Puro-I

16. Mr. Sibal submits that Tata is disentitled to any interim direction, as the issue in controversy stands covered by the judgment dated 31 October 2019, rendered by the Division Bench of this Court in Puro-I. That case dealt with three television commercials (TVCs), a flier/pamphlet and a video. The storyboards of the commercials forming subject matter of challenge in CS (OS) 403/2018 are as under:
TVC-1

Voice Overs
Visuals

Ye Paint, Chemical factory mein banta hai (This paint is made in a chemical factory)

Aur ye aapka safed namak, Jisse app roz khate hai ye bhi chemical factory mein banta hai! (And this white salt which you consume every day, this is also made in a chemical factory!)

Bleach kiya jaata hai. (It is bleached.)

Disclaimers:
*Refined Iodized White Salt commonly sold in India is chemically produced and is bleached (Verb) to get white color – http://saltcomindia.gov.in/NIDCCPProcess.html

*bleach (VERB) to remove the colour from something or make it lighter – Natural color is removed through processing & refining in a chemical factory

Puro Healthy Salt…

100% natural…

100% Kudrati… (100% Natural)

Potassium, Iron aur Iodine

Jaise 84 minerals yukt (including similar 84 minerals)

Jo aapke liye hai healthy (which is healthy for you)

Toh Aaj se khaane ka namak badal daalo. (So change the salt which you eat from today.)

Disclaimers:
*World Journal of Pharmaceutical Research, Volume 5, Issue 12, 407-416. Review Article ISSN 2277- 7105, HALITE; THE ROCK SALT: ENORMOUS HEALTH BENEFITS – Apurbo Sarker, Arittra Ghosh, Kinsuk Sarker, Debojyoti Basu and Prof. Dr. Dhrubo Jyoti Sen.

Puro Healthy Salt

Namak Healthy Toh Family Healthy (If the salt is healthy, the famly remains healthy.)

TVC-2

VO/SUPERS
VISUALS

Yeh Safed kapday, Bleach kiye hue hai (These white clothes are bleached.)

Aur yeh aapke khane ka safed Namak, (And this white salt which you eat)

Yeh bhi bleach kiya hua hai, Chemical factory mein. (This is also bleached in a chemical factory.)

Tabhi toh safed hai! (Which is why it is white!)

Disclaimers:
*Refined Iodized White Salt commonly sold in India is chemically produced and is bleached (Verb) to get white color – http://saltcomindia.gov.in/NIDCCP Process.html

*bleach (VERB) to remove the colour from something or make it lighter – Natural color is removed through processing & refining in a chemical factory

Isiliye Safed Namak ko karo … BYE BYE … (Therefore, say Bye Bye to white salt)

Puro Healthy Salt …

100% natural …

100% Kudrati …

Potassium, Iron aur Iodine

jaise 84 minerals yukt

jo aapke liye hai healthy

Toh Aaj se khaane ka namak badal daalo.

Disclaimers:
*World Journal of Pharmaceutical Research, Volume 5, Issue 12, 407-416. Review Article ISSN 2277- 7105, HALITE; THE ROCK SALT: ENORMOUS HEALTH BENEFITS- Apurbo Sarker, Arittra Ghosh, Kinsuk Sarker, Debojyoti Basu and Prof. Dr. Dhrubo Jyoti Sen.

Puro Healthy Salt

Namak Healthy Toh Family Healthy

TVC-3

VO/SUPERS
VISUALS

Khaae mein haldi Kudrati, (Turmeric used in food is natural)

Laal Mirch Kudrati… (Red chilly is natural)

Lekin Kya aap yeh jaante hai ki aapke khane ka safed nmak kudrati nahi hai!!! (But do you now that the white salt which you consume is not natural!!)

Chemical factory mein banta hai, bleach hota hai. (It is made in a chemical factory, it is bleached.)

Disclaimers:
*Refined Iodized White Salt commonly sold in India is chemically produced and is bleached (Verb) to get white color – http://saltcomindia.gov.in/NIDCCP Process.html

*bleach (VERB) to remove the colour from something or make it lighter – Natural color is removed through processing & refining in a chemical factory

Isiliye Safed Namak ko karo… Bye Bye…

Puro Healthy Salt…

100% natural …

100% Kudrati…

Potassium, Iron aur Iodine

jaise 84 minerals yukt

jo aapke liye hai healthy

Toh Aaj se khaane ka namak badal daalo.

Disclaimers:
*World Journal of Pharmaceutical
Research, Volume 5, Issue 12, 407-416. Review Article ISSN 2277- 7105, HALITE; THE ROCK SALT: ENORMOUS HEALTH BENEFITS – Apurbo Sarker, Arittra Ghosh, Kinsuk Sarker, Debojyoti Basu and Prof. Dr. Dhrubo Jyoti Sen.

Puro Healthy Salt

Namak Healthy Toh Family Healthy

17. The learned Single Judge, in her judgment dated 15 March 2019, held with respect to the TVCs, thus:

“47. A perusal of the impugned material, as a whole, shows that the theme and message is the same in all of them. The purpose is to clearly convince customers that white salt is dangerous for health. The said message is being conveyed by making references and allusions to TATA Salt. In the video, the TATA Salt packaging is clearly visible. In the pamphlets and in the booklet, the TATA Salt packaging is blurred, but there is no doubt that the packaging is clearly discernible. TATA Salt is a product which has been sold for several decades and this is a fact of which judicial notice can be taken. It has the requisite approvals and any product which does not comply with the FSSAI statute and regulations, cannot be sold. A comparison of white salt with poison is clearly meant to create panic amongst the consuming public and if allowed to be carried on unhindered, it can have a deleterious impact not just on the Plaintiff and its product, but also on customers, who could be forced to give up on the use of white salt, which is a basic ingredient in food cooked in almost every household in the country. The portrayal that white salt is bleached, manufactured in a chemical factory and comparable with paint or bleached clothes is not merely puffing but an exaggerated message which could lead to shaking up of customers’ confidence.

48. The argument of the Defendant that each of the statements in the advertisement is true, may not be wholly correct. The showing of the Plaintiff’s plant, calling it a chemical factory and making wide ranging allegations that hypertension is caused due to consumption of white salt are statements which are made without foundational facts. It is not permissible for any company, to indulge in advertising for its product which would lead to panic amongst consumers. The price difference between the two products is extremely stark. While 1 kg of TATA salt costs ?20, the Defendant’s salt is sold at ?99 per kg i.e. five times the price of the Plaintiff’s salt. Thus TATA salt is sold as a product which is consumed by the masses and the Defendant’s product is not a substitute or replacement for the same, due to the pricing itself. Further, the comparison is also between two products which are not comparable products. One is iodised salt which is sold as per the FSSAI Regulations. The other is rock salt. The intent of all these commercials and advertisements is to shock the consumers.

49. The submission of Mr. Rajiv Nayar, Ld. Senior counsel appearing on behalf of the Defendant that the three TVCs are common to the present suit and the ISMA suit is correct. However, when the TVCs are seen along with the additional material from the point of view of specifically the Plaintiff’s product –TATA salt, the legal and statutory rights that are affected as also the reliefs that can be claimed by the Plaintiff are those that cannot be granted in the ISMA suit. The right of the Plaintiff to protect the good standing of TATA salt as a product and TATA as a brand is a right which cannot be replaced or exercised by ISMA which can only take general action to protect its members including the Plaintiff. The ISMA suit does not usurp the Plaintiff’s rights to sue and neither can the said right be replaced by ISMA. It is admitted by the Defendant that the booklet which was circulated contains the contents of the above pamphlet at page 10. The same is however sought to be justified on the basis that it was only circulated to friends and family of the promoter of the Defendant company. The fact that the brochure was of limited circulation at that time does not take away from the contents of the pamphlet, which were clearly disparaging. Even limited circulation constitutes publication.

50. Mr. Nayar sought to defend all three statements made by the Defendant i.e. that white salt has chemicals, white salt is bleached and white salt is made in a chemical factory, on the ground that the said statements are true. In an action of this nature, what is to be seen is the statutory rights of the Plaintiff, the dominant purpose of the impugned material, the effect of the same and the message sought to be conveyed. It would not be correct to carry out a dissection of each of the statements. The campaign has to be viewed as a whole, and it is to be ascertained whether the same is legally permissible or not. Though the submission of the Plaintiff that the hand waving gesture of ‘bye-bye’ in the first three commercials is an allusion to `tata’ is rather amusing, at the same time, it cannot be said that the same is wholly innocent.

51. Ld. counsels have made wide ranging submissions in respect of the chemical processes which are used by both the Plaintiff and the Defendant in the manufacture of salt, and the contents of the same. The Court is merely looking at the advertising campaign as a whole and the message sought to be conveyed by it. Reference has also been made to the book Salt of the Earth – The Story of TATA Chemicals, which is stated to contain various facts about the manufacture of TATA salt.

*****

53. The settled position in law is clear i.e. while puffery is permitted, disparagement and denigration is not.

*****

58. A perusal of the impugned material shows that the intention of the Defendant is not merely to promote its product as a better product, but to call white salt in general, and specifically TATA salt, dangerous, as it is made in a chemical factory and is bleached. It is even compared to poison. As shown by the Plaintiff, use of the anti-caking agent is permissible under the food laws. If a product is manufactured as per the prescribed regulations, terming the same as poison or dangerous or as the cause for several diseases is obviously with an intention not to just promote one’s own product but to slander the other product. The clever manner in which the Defendant has completely disowned the viral video, which is completely beneficial only to its own business, clearly shows that the Defendant does not wish to own up to its own acts. A perusal of the video shows several commonalities between the admitted material and the disputed video. The theme in all the impugned material is the same. It is very telling that the markings which appear in the book titled ‘Salt of the Earth’ as shown in the video in fact appear in the extract of the book filed by the Defendant. In the booklet which the Defendant admits to have circulated, the packaging of the Plaintiff is shown in a blurred form. The conduct of the Defendant has been far from bona fide. This Court holds that on the basis of the material available on record, prima facie the video has been circulated either by the Defendant or at its behest. The impugned commercials have admittedly not been telecasted since September, 2018. The pamphlet and booklet which were part of the marketing pack was admitted to have been circulated by the Defendant but for limited circulation. Permitting the Defendant to continue, the telecast/publication of the impugned material would lead to allowing tarnishing and denigration of a product such as TATA salt which is a household name in India. The truthfulness or otherwise of the Defendant’s allegations would have to be gone into during trial. But even if it is presumed that the product is made at the Mithapur plant, where one of the by-products of the manufacture of salt from the sea is soda ash, the depiction of the same in the manner in which it is done by the Defendant is wholly unacceptable.

*****

61. It is the settled position that even use of a trademark is permissible in comparative advertising, so long as such use is not detrimental to the distinctive character or repute of the mark. The manner in which the TATA salt brand and TATA salt packaging is shown in the video, pamphlet/flyer and booklet and the message sought to be conveyed therein is clearly with an intention to bring disrepute to the brand which would be violative of the rights in the brand itself.

*****

63. Advertising has to be viewed from the point of view of a lay customer. The protagonist in the television commercial is a well-known actor who is known to the viewing public. The impugned advertising material has been circulated widely. A common man cannot discern the difference between the salt being manufactured in a chemical factory and soda ash being a by-product in the process of manufacture of salt. Such nuanced differences cannot be communicated to the public and the chances of consumers being misled is very high. As it is oft-said “A picture is worth a thousand words”. The TATA brand has earned an iconic status. TATA Salt was introduced by the Plaintiff and was recognised by the Government as one of the products meant to eliminate iodine deficiency. It was promoted as “Desh ka Namak Tata Namak” and has a large customer base. The swathe of population which has consumed and continues to consume a product such as TATA salt cannot be led to believe that they were consuming poison or a dangerous ingredient, without there being irrebuttable proof for the same. Upholding the Defendant’s right to make such statements would mean that the regulatory authorities have turned a blind eye to poison being sold, which is also clearly unacceptable. The truth, if any, of the Defendant’s statements has to be established in trial. Until then, the Defendant cannot be permitted to make such denigratory and disparaging remarks.”

(Italics supplied; underlining in original)

Following these findings, the learned Single Judge injuncted Puro from televising, publishing or circulating the three TVCs, the pamphlet and the video clip. Puro was, however, permitted to promote Puro Healthy Salt as a salt which is natural and healthy.

18. On facts, therefore, the learned Single Judge found that
(i) the purpose of all the advertisements was to convince customers that white salt is dangerous for health,
(ii) the pack held up by Mr. Kapoor in the TVCs was clearly identifiable as the pack of Tata White Salt,
(iii) comparison of white salt with poison was clearly meant to create panic amongst consumers and if permitted to continue, would completely disincentivise consumers from using white salt,
(iv) the claim that white salt is bleached, manufactured in a chemical factory and comparable with paint or bleached clothes was not merely puffery, but an exaggerated message which could shake customer confidence,
(v) the reference to Tata’s plant as a chemical factory and the statement that consumption of white salt causes hypertension were not supported by any foundational fact,
(vi) the intent of the TVCs was to shock consumers,
(vii) the intention of Puro in the TVCs was not merely to promote its product as a better product but to call white salt in general, and Tata salt specifically, dangerous, as it was made in a chemical factory and was bleached,
(viii) terming a product which was manufactured as per the prescribed regulations as poison, dangerous or the cause of several diseases clearly amounted to slander, and
(ix) the cause of action arose not just when the competing product was referred to by name, packing or other insignia, but even when a general statement was made against a class of products, for which purpose reliance was placed by the learned Single Judge on Karamchand Appliances12 and Gujarat Cooperative Milk Marketing Federation14.

19. The decision of the learned Single Judge, apropos the three TVCs was, however, reversed by the Division Bench in its judgment in Puro-I.

20. Insofar as the video clip was concerned, Puro agreed to the clip being injuncted as it completely disowned any connection therewith. Similarly, apropos the flier/pamphlet, Puro undertook to remove the image of the competing product. The Division Bench held that, once the image was removed, Tata’s grievance against the flier/pamphlet would stand allayed.

21. Thus, the Division Bench did not return any finding on merits regarding either the video clip or the flier/pamphlet. Mr. Nayar’s reliance on the fact that the judgment of the Division Bench did not permit circulation of the video clip, and directed removal of the image of the rival product on the flier/pamphlet cannot, therefore, help Tata. In fact, there was no direction to remove any image on the flier/pamphlet. Puro undertook to do so, and the Division Bench merely recorded the fact of the undertaking observing that, once the image was removed, the grievance of Tata with respect to the flier/pamphlet would no longer survive.

22. Findings on merits were, therefore, returned by the Division Bench only with respect to the three TVCs, and they are pivotal in deciding the present application. The findings of the Division Bench, as contained in paras 48 to 50, 52, 53, 54 and 56 to 62 of the report in Puro-I may be reproduced thus:

“48. The Court has viewed the three TVCs carefully. The story board of each of the three TVCs has some common elements and distinct elements. The first TVC is the “paint film; the second is “clothes film”; and the third is “haldi film”. The initial few frames/visuals in each of the films contain distinct elements. The remaining frames are identical in the three TVCs.

49. The first frame in the paint film shows Mr. Anil Kapoor holding up a white can with the words “Paint” written on it. In the next frame he is holding a packet which has the words “Safed Namak” written in black. There is no indication that this packet is that of TCL. The words spoken by Mr. Kapoor are “Ye paint, chemical factory mein banta hai” and while holding the packet of salt he states “Aur ye aapka safed namak, Jisse aap roz khate hai ye bhi chemical factory mein banta hai, bleach kiya jaata hai.”

50. The third frame in the paint film (which is the fourth in the clothes film and fifth in the Haldi film) shows Mr. Kapoor stating “Isiliye safed namak ko karo…” and making a waving gesture which in the normal sense would mean “bye-bye”.

*****

52. The other criticism is that by stating that both paint and white salt are manufactured in a chemical factory, an impression is being created “that production methods of both are similar” and that white salt is “toxic and harmful, like paint”. This again prima-facie appears to be an instance of TCL reading too much into the advertisement. TCL does not deny that its salt is manufactured at its chemical factory which produces soda-ash and that the salt is a by-product. TCL also admits that the salt contains an anticaking agent E-536 which is indeed Potassium Ferrocyanide.

53. There appears prima-facie to be no suggestion in the paint film that TATA salt is either poisonous or harmful to health. The only suggestion appears to be that the consumer should make an informed choice. On the issue of denigration or disparagement of the TATA salt, at this stage when evidence is yet to be led by the parties, what has to be considered is whether in the paint film, any statement of Mr. Kapoor can be said to be false or misleading or deliberately denigrating TATA salt?

54. As far as the other frames are concerned, which are common to all the three TVCs, they promote the Appellant’s product as being natural, containing potassium, iron and iodine in the natural form and stating that it is healthy and urging the consumer to choose the Appellant’s product. The objection to the word “bleached” and that all white salts are therefore unfit for consumption appears to be based on the alleged disparagement of “an entire class of white salt manufacturers.”

*****

56. As far as the present suit is concerned, the initial burden is on TCL to demonstrate that its product has been specifically targeted by the TVCs. Prima facie it does not appear to have succeeded in doing so. In other words, the Court is not prima facie satisfied that the first TVC deliberately denigrates TCL’s TATA Salt. This Court is unable to concur with the learned Single Judge in this regard.

57. Turning now to the second TVC which is the “clothes film”, the first visual shows a bundle of white clothes which have been bleached and the packet of white salt which Mr. Kapoor states has been bleached in a chemical factory and which is why it is white. The objection is that this creates an impression that it is “unnatural”. These objections overlook the fact that the consumer who is paying Rs.20 for 1 kg of TATA Salt will think several times over if he decides to pay Rs.99 for a kg of the Appellant’s Puro-Healthy salt. He should know what the added value of the Appellant’s product is, which is the attempt being made in these three TVCs including in the “clothes film”.

58. Prima-facie it does not appear that the second TVC i.e. the clothes film specifically targets TATA Salt. There is no image or allusion to TATA Salt in the second TVC. Again, there is the waving gesture but without any words. It prima-facie cannot be said to be denigrating TATA Salt in the manner suggested by TCL.

59. The third TVC is the “Spices Film” or the “Haldi Film”. The first frame states an obvious fact that it is natural to use “Haldi” and “Lal Mirch” in eating, whereas the salt that is used is made in a chemical factory and is bleached. Here again there is no direct reference to TATA Salt. Following this are the other common visuals which have been referred to earlier beginning with the waving gesture. In the modified TVCs, a waving gesture has been omitted.

60. In the considered view of the Court while it is open to the Appellant to release both the original and the modified TVCs, the waving gesture as such should not be seen as directly alluding to the Respondent’s product. This should be seen as a permissible element in a commercial advertisement where every expression could not be seen to be “false, misleading, unfair or deceptive.” It must been seen as encouraging the consumer to make an informed choice about the product for which the consumer is going to pay much more. The class of the product itself is not comparable. The class of consumers targeted is also different.

61. Learned counsel for the Respondents placed considerable reliance on the observations of the learned Single Judge in para 63 of the impugned judgment. In the absence of the matter having gone to the stage of evidence, the conclusion of the learned Single Judge in para 63 that “the TATA brand has earned iconic status. TATA salt was introduced by the Plaintiff and was recognised by the Government as one of the products meant to eliminate iodine deficiency’, is problematic. Equally problematic is the opinion that
“The swathe of population which has consumed and continues to consume a product such as TATA salt cannot be led to believe that they were consuming poison or a dangerous ingredient, without there being irrebuttable proof for the same.” This ought to be qualified by the caveat that this is the Plaintiff’s case which remains to be tested in evidence. The threshold for proving defamation is high. In the present case, it might be higher with the Appellant pleading truth as a defence.

62. In the prima-facie view of this Court, at the present stage when evidence of the parties is yet to be led, it is not possible to come to a conclusion in the manner that the learned Single Judge has, that the three TVCs make a direct reference to TATA Salt and are either disparaging or denigrating of it.”
(Underscoring supplied)

23. When one examines the TVCs forming subject matter of challenge in Puro-I, it is seen that
(i) all the three TVCs were specifically directed at a pack of white salt, similar, if not identical, to the pack of white salt shown in the impugned commercial in the present case,
(ii) in TVC-1,
(a) it was specifically alleged that white salt was bleached in a chemical factory, which was why it was white,
(b) it was specifically alleged that iodised white salt commonly sold in India was chemically produced,
(c) it was specifically alleged that the natural colour of salt was removed through processing and refining in a chemical factory,
(d) the viewing consumer was specifically advised to say “bye-bye” to white salt for these reasons,
(e) Puro salt was exalted as 100% natural, containing potassium, iron, iodine and 84 minerals, which were healthy,
(f) the consumer was specifically advised, therefore, to immediately change the salt which was being used by her, or him, and
(g) the TVC concluded with the message that if the salt which was consumed was healthy, the family would also remain healthy,
(iii) in TVC-2,
(a) it was specifically alleged that white salt was bleached in a chemical factory, which is why it was white,
(b) refined iodised white salt commonly sold in India was chemically bleached, using chemicals, to make it white in colour,
(c) the natural colour of salt was removed through processing and refining in a chemical factory,
(d) the consumer was specifically advised, for these reasons, to say “bye-bye” to white salt,
(e) Puro Healthy Salt was 100% natural and contained potassium, iron, iodine and 84 minerals, which were healthy,
(f) the consumer was specifically advised, therefore, to change the salt which he was using and
(g) the commercial concluded with the message that a family which consumes healthy salt will remain healthy. and
(iv) in TVC-3,
(a) the commercial began with the observation that turmeric and red chilly, which were used in cooking, were natural,
(b) about white salt, the commercial went on to state that
(i) it was not natural, however, white salt, which was also used in cooking, was not natural,
(ii) white salt is made in a chemical factory, and
(iii) white salt is bleached through processing and refining,
(c) the consumer was, therefore, advised to say “bye-bye” to white salt,
(d) Puro salt was 100% natural and contain potassium, iodine and 84 minerals which were healthy,
(e) the consumer was, therefore, specifically advised to change the salt which he used and
(f) the commercial concluded with the observation that a family which consumed healthy salt stayed healthy.

24. As against this, in the impugned commercial, what is the narrative? Ms. Suresh places a pack of Puro Healthy Salt on the table. The other lady in the picture (Lady 2) queries of Ms. Suresh as to why, when white salt is available in the house, Puro was being used. Ms. Suresh responds that she was using Puro because it was healthy. Lady 2 queries as to how Puro was healthy. Ms. Suresh responds that Puro was not bleached to make white, no chemicals were added to Puro to make it free flowing and Puro contains natural iodine which was not added to it. Lady 2 responds with the expression “Superb”. The commercial concludes with Lady 2 stating that Puro had come to her house and Ms. Suresh querying as to whether Puro had come to the house of the viewer,

25. There is no dispute about the fact that comparative advertisement – or for that matter, any form of advertisement – allows extolling of one’s own product. The advertisement becomes objectionable only when it makes comments about the product of another. What the Court is to see, in cases where disparagement is alleged, is whether the said comments are objectionable, given the well-settled standards in that regard.

26. When one compares the comments made about white salt in the three TVCs which form subject matter of debate in Puro-I, with the comments made about white salt in the presently impugned commercial, it is apparent that the attack on white salt in the Puro-I commercials is far more direct and far more extreme than in the impugned commercial. In fact, as Mr. Sibal correctly points out, the impugned commercial does not directly make any comment at all regarding white salt. As against this, there are direct aspersions in the Puro-I TVCs about white salt per se. It is specifically alleged, in the Puro-I TVCs, that white salt is made in a chemical factory, that it is bleached by removing natural colour through processing and refining. There is a specific exordium, to consumers, to discontinue use of white salt and replace it with Puro Healthy Salt as Puro Healthy Salt is natural and contains minerals which are beneficial to health. The comparison of white salt, in TVC-1 is, in fact, with paint. TVC-3 in Puro-I is even more hard hitting, as it directly states that white salt is not a natural product but is a product of processing in a chemical factory, including bleaching using chemicals.

27. When one compares the Puro-I TVCs with the impugned commercial, what is immediately apparent is that unlike the TVCs in Puro-I, there is no direct reference, in the impugned commercial, to the qualities of white salt at all. As worded, the only reference to white salt is in the initial query posed by Lady 2 to Ms. Suresh. The query is as to why, when white salt is available in the house, Ms. Suresh chooses to use Puro’s salt. Prior thereto or thereafter, there is no reference to white salt. What follows thereafter is only the response of Ms. Suresh as to why she is choosing to use Puro’s salt. Her response is that Puro’s salt is healthy. The explanation that follows is to the subsequent query of Lady 2 as to why Puro’s salt is healthy. That query, notably, does not make any reference to white salt. All the comments that follow are, therefore, as Mr. Sibal correctly points out, entirely relatable to Puro’s salt, and not to white salt at all.

28. Carefully seen, the highest that could be said, therefore, would be that the preference for Puro’s salt, even when white salt was available, was because Puro’s salt was healthy. It is highly debatable as to whether this can result in an inference that white salt is unhealthy. Even if, assuming it could, a much more direct allusion to white salt, in the very same terms, is available in the three Puro-I TVCs.

29. The comments of Ms. Suresh, in the impugned commercial, which follow the second query of Lady 2, answer as to why Puro’s salt is healthy. Puro’s salt is stated to be healthy because it is not whitened by bleaching, no chemicals are added for rendering it free flowing and it contains natural iodine. These are essential qualities attributed to Puro’s salt, explaining why it is healthy. It is difficult to read, into the said comments, even an implied allusion to these qualities being absent in white salt.

30. In fact, one of the main errors in the submissions advanced by learned counsel for Tata, is that they have failed to notice that Lady 2 poses, not one, but two queries to Ms. Suresh, and that the comments regarding absence of bleaching, or addition of chemicals to render the salt free flowing and presence of natural iodine are responses to the query as to why Puro’s salt is healthy. They are not responses to the query as to why Puro’s salt is being preferred over white salt.

31. As Mr. Sibal correctly points out, it is not Tata’s contention that any of the said comments are factually incorrect. Specifically, Tata does not contend either that Puro’s salt is bleached, or that chemicals are added to it to make it free flowing or that it does not contain natural iodine.

32. Much effort was expended, by learned Counsel for Tata, particularly, Mr. Anand, to convince the Court that white salt is not bleached, at least by using any chemicals, the only chemical which is added being an anti-caking agent which is a permissible additive to render the salt free flowing. Iodisation is done as a statutory imperative.

33. Strictly speaking, however, these submissions are not of particular relevance as the impugned commercial of Puro does not allege otherwise. What Tata is doing is inferring, from the positive assertions in the impugned commercial, negative inferences regarding Tata’s salt. There is prima facie substance in Mr. Sibal’s contention that these inferences would require a leap of imagination, which an ordinary consumer would not undertake. At a prima facie stage at least, it is difficult for me 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.

34. Learned Counsel for Tata submits, however, that the impugned commercial cannot be seen frame by frame, as what matters is the overall impression conveyed by the commercial to the average consumer who views it. Such a consumer does not either view or recollect, a commercial frame by frame. According to learned Counsel for Tata, the overall impression that the impugned commercial conveys to a consumer is that white salt is unhealthy and is required to be avoided.

35. Even if, arguendo, the said submission is accepted, the Puro-I TVCs would, nonetheless, stand in the way of any interlocutory injunctive relief being granted to the Tata in the present case. Even if it were to be assumed that, by inference, or indirectly, the impugned commercial alleges that white salt is bleached, or that chemicals are added to it to make it free flowing, or that iodine is added to white salt, the very same allegations are made, directly, against white salt, in the Puro-I TVCs. Once the Division Bench of this Court has, in Puro-I, not found the said TVCs to be disparaging of white salt, any opinion, by me, that the impugned commercial in the present case is so disparaging would clearly be contrary to the view expressed by the Division Bench in Puro-I.

36. Mr. Nayar’s contention that there can be no precedent on facts in such cases, and that what matters is the overall look