Advertising is a mode of promoting the product of a manufacturer. Comparative advertising can be defined as advertising that specifically compares the advertised brand of the same product.[1] This implies that in such an advertisement the product in question is similar to the extent of exchangeability to the other product while their brands may be at loggerheads. The intention is to show superiority over the competitor’s product and gain advantage over it.
A mere statement referring even by implication to a competitor or to the goods or services which he offers is sufficient to bring the advertisement within the fold of comparative advertising.[2] The test for determining whether an advertisement is comparative in nature is whether it identifies, explicitly or by implication a competitor of the advertiser of goods or services which the competitor offers.[3] It is legal to the extent that it does not hamper the reputation of competitor’s mark and adheres to honest practices in industrial matters.
The Advertising Standards Council of India which is a self-regulating voluntary organization in its Code of Conduct, 1985 has specified certain norms or guidelines which should be kept in mind while promoting their goods through ads.[4] The guidelines state as follows:
· The producer must only make honest representation in the ads
· The ads must not be offensive in any way to the general public
· Ads must not be used indiscriminately for the promotions of products that are hazardous or harmful to the society or even to individuals particularly minors, to a degree unacceptable to society at large
· Ads must not in any way hamper competition
Further, Chapter IV of the Code deals with the form and manner of comparative advertising.[5] Advertisements containing comparisons with competing manufacturers and sellers are permissible in the interests of vigorous competition and free dissemination of information. There are following requirements to be satisfied are:
· Advertiser’s product is being compared with the aspects of competitor’s product.
· The comparison should not take place in a way which confers an artificial advantage to the advertiser and should not suggest falsely that advertiser’s product is better.
· A Consumer should not mislead due to the comparison.
· The advertising does not unfairly denigrate attack or discredit other products, advertisers or advertisements directly or by implication.
Since there are no legislations specifically drafted to regulate comparative advertising in India, the precedents set by various courts are followed while adjudging such matters. Though the courts rule in favor of liberty to advertise but do not hesitate in granting injunctions and imposing damages against infringers. Some of the relevant case laws are discussed here.
I. Puffing of Goods - Reckitt & Colman of India v. Kiwi T.T.K.[6]
The Delhi High Court reflected on the concept of disparagement in light of comparative advertising. It drew the conclusion that a manufacturer/advertiser is entitled to state that his goods are the ‘best’ and also make some statements for puffing of his goods but the same will not give a cause of action to the other traders or manufacturers of similar goods to institute proceedings as there is no disparagement or defamation or disparagement of the goods of the manufacturer in so doing. However, at the same time, a manufacturer is not entitled to say that his competitor's goods are ‘bad’ in order to promote his goods. Thus, comparative advertising cannot be permitted in cases where it seeks to discredit or denigrate the trade mark or trade name of its competitor(s). In such a scenario, the Court has the power to grant an injunction to the wrongdoer.
II. Defaming the Competitor - Reckitt and Colman of India Ltd. v. MP Ramachandran and Anr.[7]
The holding in this case is on the same lines as of Reckitt & Colman of India v. Kiwi T.T.K. – the court held that a tradesman is entitled to proclaim his goods to be the best in the world; he can also say that his goods are better than his competitors’, even if these statements are false; he can even compare the advantages of his goods over the goods of others. However, he cannot say that his competitors’ goods are bad. If he says so, he slanders the goods of his competitors, that is, he defames his competitors and their goods which is impermissible. No action will lie if there is no defamation to the goods or to the manufacturer of such goods, but if there is such defamation an action lies and if the same lies for recovery of damages for defamation, then the Court is also competent to grant an order of injunction restraining repetition of such defamation.
III. Insinuation against Competitor - Dabur India Ltd. v. Emami Limited[8]
In an advertisement, the voice over of the advertisement, as translated into English, was 'forget Chyawanprash in summers, eat Amritprash instead' (Garmion mein Chyawanprash bhool jao, Himani Sona Chandi Amritprash khao). The learned Judge held that in the advertisement there is an insinuation against using of Chyawanprash during the summer months and since Chyawanprash in its generic sense is being disparaged, the plaintiff therein being a manufacturer of Dabur Chyawanprash is also being disparaged.
IV. Defaming All Products of a Category - Gujarat Cooperation v. Hindustan Unilever[9]
In this case, the issue arose with regard to advertisements run by Amul that compared Amul’s ‘ice cream’ with ‘frozen desserts’ stating that the former is made out of real milk while the latter is made out of Vanaspati. Further, the advertisement instructs that children should be given pure ‘real milk’ made ‘ice creams’ instead of frozen desserts. Hindustan Unilever Limited, the owner of Kwality Wall’s (market leader in the frozen desserts category) raised objection to the advertisement along with other sellers of frozen desserts that the said advertisements disparaged all the products sold under the category of frozen desserts. The court held that Amul had in fact disparaged the entire category of frozen desserts in general as the advertisements led the public to believe that frozen desserts were of an inferior quality than milk-based ice creams.
Based on precedents, key ingredients for product disparagement are, a false or misleading statement regarding the goods that deceived the consumers and as such was likely to influence consumer behavior.
V. Technological Superiority - Godrej Sara Lee Ltd. v. Reckitt Benckiser (I) Ltd.[10]
The defendants advertised their product ‘Mortein’ which was meant to kill cockroaches as well as mosquitoes. The plaintiff subsequently claimed that this advertisement disparaged their product ‘Hit” which had two separate variants for killing cockroaches and mosquitoes. The Court held that the advertiser (defendant) has a right to boast about its product and its technological superiority in comparison with other products in the market. Hence, in this case, by informing the consumer that one product can be used instead of two of the competitors for the same purpose, then the advertisement does not amount to disparaging the product of the plaintiff at all.
VI. Commercial Speech - Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd[11]
In this case, the defendant argued that advertising was in fact ‘Commercial Speech’, protected under Art.19 (1)(a) of the Constitution. However, the Court held this to be a far-fetched argument, since the advertiser could not be given the liberty to defame under the umbrella of advertising.
VII. Defamation and Global Pandemic - Hindustan Unilever Limited v. Reckitt Benckiser[12]
In March 2020, while the world faced the wrath of the outbreak of the deadly COVID-19, Hindustan Unilever Limited (HUL) took Reckitt Benckiser (RB) to the Bombay High Court over the latter’s recent Dettol handwash advertisement, alleging that the ad disparages HUL’s Lifebuoy soap trademark. The advertisement promoted the company’s Dettol handwash, while portraying that bar/solid soaps aren’t as effective as the liquid soap for the purpose of washing hands. The timing of the release is relevant as washing of hands diligently is important for tackling the global pandemic. The allegation by HUL was two-fold. Firstly, that the defendant’s ad disparaged Lifebuoy soaps by showing a soap with the same color, shape and design as HUL’s registered red Lifebuoy soap. Secondly, in light of the World Health Organization’s guidelines to use soap and water for regular hand washing, the Dettol ad allegedly created a scare and falsely propagated that soaps are not as effective. However, the case did not see the light of day as before the suit went into substantial claims, the defendant company agreed to suspend the use of the impugned ad for the next one month.
It is pertinent to hold that in an earlier case concerning the same parties[13] however in opposite roles, the Delhi High Court had held in favor of a disparagement case when the ad had an ‘orange bar soap’ that could easily be identified as RB’s product which is the Dettol soap.
Conclusion
The case laws discussed above have a common thread which is the question of defamation. To substantiate this, in one of the most relevant cases on the matter, the High Court of Delhi held[14] that in comparative advertising, a consumer may look at a commercial from a particular point of view and come to a conclusion that one product is superior to the other, while another consumer may look at the same commercial from another point of view and come to a conclusion that one product is inferior to the other. Disparagement of a product should be defamatory or should border on defamation. In other words, the degree of Disparagement must be such that it would tantamount to, or almost tantamount to defamation.
Additionally, other variables are also considered in some of the cases. While puffery of products and sometimes even false entitlement has been allowed, misleading the consumer is discouraged blatantly by the Courts. Similarly, in the most recent case involving the countries’ biggest FMCG players, apart from the question of product disparagement, what was rightly pointed out was that the larger picture in the current times was to not feed false impressions in the minds of the consumers at the time of a global pandemic. At a time when naïve consumers are ready to believe anything related to the pandemic which has made lives difficult for them, projecting a competitor’s product which is essential for safety in bad light would certainly not have gone down well with the Court had they not withdrawn the advertisement anyway. Thus, through comparative advertising, advertisers intend to mold the behavior of consumers towards their own product as compared to the competitors’ which is why it is allowed, but only if it is done without causing harm to the society at large.
[1] Blacks Law Dictionary, Bryan A. Garner, 11th edn, 2019.
[2] Case C-44/01 Pippig Augenoptik, 2003 ECR I-3095, para 35. [3] Case C-381/05 De Landtsheer Emmanuel, 2007 ECR I-3115, para 17.
[4] Access the Code of Conduct, 1985 here. [5] Id. [6] 1996 PTC (193) T 399. [7] 1999 PTC (19) 741. [8] 2004 (29) PTC 1 (Delhi). [9] SUIT (L) NO. 204 OF 2017 BOM HC. [10] 2006 (32) P.T.C. 307. [11] AIR 1995 SC 2438. [12] Comm IP Suit (L) No. 300 of 2020, High Court of Judicature at Bombay. [13] Hindustan Unilever Limited v. Reckitt Benckiser, RFA (OS) 50/2008, C.M. APPL. 17116/2008. [14] Dabur India Ltd. vs. Wipro ltd, CS(OS) 108 of 2006.
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