Colgate suffered a setback in the toothpaste ad-war with Hindustan Unilever (HUL) as a review petition filed by it before a single judge in the Delhi High Court was dismissed on August 27.
Colgate had earlier filed a suit in the Delhi High Court seeking an interim order restraining HUL from airing or publishing ads of its newly launched Pepsodent Germicheck Superior Power toothpaste, claiming the ads were “tarnishing, defaming the worth and reputation” of its toothpaste brand.
On August 21, Justice S Muralidhar in his judgment had refused to pass an order restraining HUL from airing the allegedly disparaging Pepsodent ads. Following this, Colgate had approached a two-judge bench of the Delhi High Court, which allowed the company to present new material before Justice Muralidhar. But Colgate’s review petition was dismissed by Justice Muralidhar on August 27 once again.
As of now, the retail giants’ case is before another two-judge bench of the Delhi High Court comprising Justice Badar Durrez Ahmed and Justice Vibhu Bakhru, who are hearing arguments in the appeal filed by Colgate against the single judge’s August 27 order.
During the proceedings, senior counsel CA Sundaram argued that the single judge had analysed the ads on an intricate, frame-by-frame basis and had taken into consideration as to what a discerning viewer would think of the ads, whereas it is the point of view of an “average person with imperfect recollection,” that should be taken into consideration and not that of a discerning viewer.
Senior counsel Abhishek Manu Singhvi, who also argued for Colgate, said that HUL had presented different ads to dentists and the consumers and that there were contradictions amongst the two showing factual falsity of the claims being made, in respect of Pepsodent.
Appearing for HUL, senior counsel Neeraj Kishan Kaul, on the other hand, cited Supreme Court judgments to highlight that an order rejecting the review application cannot be appealed against and said the new material served by Colgate cannot be the “basis for granting an injunction,”.
The ads which are being aired since August 9 claim that Pepsodent has “130% the germ attack power of Colgate Strong Teeth four hours after brushing.”