Comparative advertising is a promotional technique in which an advertiser claims the superiority of its product over competing product(s) by direct or indirect comparison. Comparative advertising is defined as advertising that compares alternative brands on objectively measurable attributes or price, and identifies the alternative brand by name, illustration or other distinctive information.
Law in India
A trademark enables a consumer to identify the source and origin of goods. thus if a company in the process of puffing up its product to consumer uses its competitors trademark to make comparison and further goes to the extent of disparaging the competitors product , then such an advertisement would not only invoke issues relating to comparative advertising but would also attract the provisions as laid down under trademark law for trademark infringement.
The law as laid down in the case of Irving ltd v. F.A Horse nail is widely referred in cases involving comparative advertising and product disparagement in relation to trademark in India.
Sections 29(8) and 30(1) of Trademark Act inter alia implicitly enunciate provisions with respect to comparative advertising and delineate that any advertisement which is in accordance with the honest practices in industrial or commercial matters and does not take unfair advantage of or is not detrimental to distinctive character or against the reputation of a trademark, then does not constitute a trademark infringement under the act. Thus, the provisions imply that comparative advertisement are per se perusable, however such advertisements are subject to certain restriction.
RECENT OBSERVATION OF COURT AND SUBSEQUENT DEVELOPMENT OF LAW IN INDIA
In the recent times, India has , witnessed a considerable upsurge in legislation involving comparative advertisements and there is plethora of cases substantiating the issue relating to product disparagement .
In the case of Rkette benickson v. Hindustan lever, the honble judge of court after analyzing several cases addressing a similar issue was of the view that the commercial telecast by Hindustan lever was disparaging and denigrating the plaintiff’s product.
In the said commercial advertisement, a child was shown falling sick due to the allege use of dettol as an antisepectic liquid in bathing water while promoting security of Hindustan lever live boy soap. In the plaintiff filed suit for an ad interim injunction against the commercial on the grounds that it was disparaging and denigrated the reputation and goodwill of the plaintiffs’ product dettol, moreover the commercial also showed a liquid of the same color being poured similar in shape to dettol bottle, producing a milky effect ,the court while granting injunction to plaintiff also held that where the antiseptic liquid has been slightly shown under bad light and in fact, as something which is ineffective can be construed as disparagement and denigration of liquid shown in the advertisement .
Few other incidents of comparative advertising India where aggrieved party approached commission
1) A lady holding a bottle of Ujala was looking down on another bottle and exclaiming ‘chhi, chhi, chhi!’ in disgust TVs advertisement promoting Ujala liquid blue showed that 4 drops were adequate to bring striking whiteness of clothes while several spoons of other bands were required. The bottle did not have any label and similarity with the reguel bottle. The manufacturers of Regaul, a competing brand, approached the Commission that the advertisement was disparaging its goods.
2) In a television advertisement promoting Vicco tooth powder, another tin, of oval shape and without any label is shown. White powder coming out from the can was described as useless. Boys were asked the name of the toothpaste. One boy said Pepsodent. The response of the second boy was muted. However, lip movement of the boy indicates that he was saying ‘Colgate’. The test of the two samples is visually depicted side by side. The saliva of ‘the leading toothpaste’ shows large number of germs.}UL advertised ‘New Pepsodent that it was ‘102% better than the leading toothpaste’.
3) Pepsi alleged mockery and derogatory remarks about its product. In a television commercial, Thumps Up mocked Pepsi by calling it ―Bachchon Wali Drink, ―Wrong Choice Baby,etc. Although there was no direct reference to Pepsi, it was quite clear which competitor was referred so since the kid in the commercial was shown muttering the word ―Pepsi,which could be seen from his movements although it was muted. Identity was further established with the word ―Pepsiwritten on the competitive bottle with a glob logo in the color of Pepsi.
The commercial was shown to mockingly convey that grown up kids should prefer Thumps Up instead of Pepsi, which is sweet and meant for small children. It was held that Thumps Up depicted Pepsi in derogatory and mocking manner, which could not be called ―puffing up.
Hindustan Unilever Ltd. moved to the commission against the advertisement of Colgate Dental Cream-Double Protection (CDC-DP) saying that it disparaged tooth pastes manufactured by it under various brand names. It contended reference ordinary‘to all other tooth paste brands other than Colgate. The commission concluded—for the purpose of disparaging something or some product, some comparison with what is inferior is necessary— disparagement or an act of disparaging would occur only by comparison with some identifiable product. The commission was of the view that a reference to ordinary toothpaste does not identify any specific product. Thus, commission took the position that the claim of 2.5 times superiority of CDC-DP over any ordinary tooth paste did not refer to any identifiable product or manufacturer. As a result it could not be a case of disparagement of goods.
By: Madhvi Chopra, Vivekananda Institute of Professional Studies, IP University, New Delhi.