MUMBAI: In a victory for Hindustan Unilever Ltd which makes Kwality Walls Frozen Desserts, the Bombay High Court on Friday allowed its plea and restrained the airing of an Amul ice-cream television commercial forthwith.

Justice SJ Kathawalla granted the injunction as sought by HUL which had argued that the Amul advertisement was disparaging its (HUL's) Frozen Desserts.

The contention of HUL is that an Amul ad asks viewers not to eat products that contain vanaspati oil, thus disparaging its Frozen Desserts which contains vegetable oil.

On Friday, Amul's counsel Ashish Kamat sought a stay of the HC order. But after Virag Tulzapurkar appeared for HUL and opposed the plea, the HC declined to stay its order. Tulzapurkar argued that there is no bar on Amul airing other ads.

There was a heated battle between the two sides in the court. Neither side was willing to cool off. While hearing the matter, the court did not pass any orders restraining airing of the Amul ad. However, by the end of the hearing it appears that the submissions of HUL of facts and law appealed more to the judge who ruled in its favour.

The hearing lasted for days before the summer vacation.

Senior counsel Ravi Kadam appearing for Gujarat Cooperative Milk Marketing federation Ltd, which makes Amul Ice-creams, defending the Amul commercial said that the ad doesn't denigrate HUL's frozen desserts. He said the ad was merely informative as it informed society and consumers that frozen desserts contain vegetable oil-- Vanaspati oil.

The commercial says it in Hindi as “vanaspati tel’’ and HUL cannot say “vanaspati tel ‘ is the same as ‘vanaspti’ and that public at large don’t know the dictionary meaning of Vanaspati tel. Kadam said, “We are entitled to show the difference between ice cream and frozen dessert. Ours is an ice cream made only of milk and there is a frozen dessert which also contains vegetable oil."

Tulzapurkar who argued for HUL said the ad specifically mentions vanaspati in Hindi while other parts of the ad are in English and it is so done to target a larger audience in disparaging its frozen dessert products.

At one point during the hearing Justice Kathawalla had asked whether the Amul ad can now say "vanaspati tel yani vegetable oil." It made one more suggestion after a HUL counsel Birendra Saraf said even the level of oil shown in the Amul television commercial be reduced among other changes. Saraf in his rejoinder had argued that "in the pretense of educating the public, Amul is indulging in a false and vicious campaign against HUL's Walls. The storyline, the manner of presentation and the intent of the TV commercial is clearly only to disparage and denigrate Walls, a frozen dessert."

The arguments in court relied even on the Oxford dictionary meaning for vanaspati tel. It means vegetable oil said Kadam, an ingredient which HUL admits its frozen desserts contain and which HUL says is healthy. “Once HUL says vegetable oil is healthy, then the ad cannot be said to be disparaging," was the Amul argument. Kadam had stressed that it can legally highlight one or two aspects of a product in a commercial as long as it is truthful. He said since HUL uses ‘vegetable oil’ in its frozen dessert, the Amul ice cream commercial merely states a fact that frozen desserts use vegetable oil.

Tulzapurkar had argued at length and cited half a dozen judgments to show that the Amul commercial disparages frozen dessert by saying it contains Vanaspati tel with an intention to imply that frozen dessert is thus harmful for health.

HUL said the Amul ad was misleading and Amul said it would prove that it wasn’t. Saraf also said that when Amul says that theirs is a pure product, they are implying that HUL’s isn’t.

The HC whose judgment will be out later held in HUL's favour in the interim while the main suit is pending.

A statement issued by HUL said, "GCMMF has since March 4, 2017 been airing a misleading television commercial of Amul ice cream that makes factually incorrect statements about frozen desserts creating apprehensions among consumers. HUL as the leading frozen desserts and ice cream player in India, had in the interest of consumers, filed a case on March 21, 2017 in the Bombay High Court seeking immediate removal of the misleading Amul ice cream advertisement."

Kwality Wall’s sells both ice creams and frozen desserts in India and it’s range of frozen desserts and ice creams contain milk solids/milk just like any other ice cream. Kwality Wall’s clarified that its range of frozen desserts do not contain vanaspati or dalda. The only difference is that frozen desserts use vegetable fat instead of dairy fat, which actually make them healthier as they have lower saturated fat and do not have cholesterol.

Reacting to the court order, Sudhir Sitapati, executive director (Refreshments), HUL, said, “We are pleased that the Bombay HC while injuncting Amul’s advertisement has agreed with HUL’s contention that Amul’s advertisement is false, misleading consumers and disparages Frozen Desserts. Kwality Wall’s products are made with milk/milk solids and do not contain Vanaspati. In fact, our frozen dessert products use milk without cholesterol to offer healthy and exciting choices to consumers.”

