The judgment established the importance of objective, relevant, verifiable, and representative comparisons in advertising, and highlighted the need for self-restraint by appellate courts and the burden of establishing an overwhelming prima facie case for the appellant in cases of refusal of interlocutory injunctions.

JUDGMENT :

G.S. Patel, J.

1. There are two Appeals. This common order will dispose of both. Both appeals arise from a common order and judgment dated 16th June 2022 (AK Menon, J). In Commercial IP Suit (L) No.805 of 2021, Hindustan Unilever Limited (“HUL”) is the Plaintiff. In Commercial IP Suit (L) No.1087 of 2022, Wipro Enterprises Private Limited (“Wipro”) is the Plaintiff. The Defendant is common, USV Private Limited (“USVPL”).

2. HUL and Wipro both complained that USVPL launched an advertising campaign promoting and publicising its product under the brand SEBAMED. They claimed that the advertising campaign run by USVPL constituted unlawful disparagement and denigration of HUL and Wipro products, in which the Plaintiffs had valuable intellectual property rights. To be perfectly clear at the beginning, HUL sought protection for four of its products under the brand names, LUX, DOVE, PEARS and RIN. Clearly RIN is not of a class with the other three because it is a detergent. For its part Wipro sought protection for its product SANTOOR.

3. Mr Dhond, learned Senior Advocate for USVPL in appeal, submits that in his 74-page judgment the learned Single Judge was materially in error on several distinct aspects. First, he did not properly appreciate the defence of ‘truth’ taken by USVPL. Second, the learned Single Judge incorrectly held that USVPL’s products and the Plaintiffs’ products were incomparable. Third, the learned Single Judge ought to have delivered an authoritative pronouncement on the law in regard to the limits of what is or is not permissible in what we will call comparative advertising campaigns. By this, we mean advertisements for products where rival products are juxtaposed and set one against the other, with the advertiser making claims in regard to one and purporting to show how it is superior to the other products.

4. Mr Dhond also submits that the result of the impugned order is far-reaching. It constitutes an unconscionable restraint on the right to commercial free speech and expression available to advertisers. This kind of a restraint, he submits, is excessive and the law is settled that if there is to be a restraint on such a right, it has to be minimally restrictive.

5. Before we consider the submissions advanced, we set before us ourselves a reminder of the governing jurisprudential framework within which an appellate Court must function especially when dealing with an interim order. This was settled a very long time ago by the Supreme Court in Wander Limited And Another v. Antox India Private Limited. 1990 (Supp) SCC 727. In paragraph 14, the Supreme Court said:

“14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. (Emphasis added)

6. Wander v. Antox was reaffirmed by the Supreme Court in Mohd Mehtab Khan v. Khushnuma Ibrahim Khan, (2013) 9 SCC 221. Tha