Author: Manav Bhagat - Institute Of Law, Nirma University
Advertising is a type of communication where the companies intent to provide the consumers with information of the company’s product which is being launched or is available in the market which highlights the features, pricing and quality of the product. Comparative advertising is nothing but in simple words it is comparison of two products which are similar or of same class product of two or more different brands and the comparison of product is done on the basis of vague or specific attributes or features and the overall character of the brand. The comparative advertisement has increased over a period of a time and companies or brands prefer comparative advertising of their product by comparing it with other brands products over single brand advertisement. Comparative advertising is preferred by companies involved in manufacturing of fast moving consumer goods like washing powder, children drinks, soaps, deodorants etc. Comparative advertising is also practised by supermarket stores.
What is Comparative advertising?
Comparative advertising involves comparison of similar products which are available in the market offered by two different brands. It is also called as advertising war. (Salhotra, 2009)Advertising is part of commercial speech according article 19 (1) (g) of the Indian constitution which talks about freedom of speech and expression. If the advertisements are restricted or banned then it would violate the fundamental right of freedom of speech and expression , also right to educate, remain informed and entertained are also covered under this right .In comparative advertising the companies are allowed to make comparison of their product with product of rival company selling similar good and company can make comparison of the features and quality of two goods and try to show that their good is better or good compared to the other good of a particular company but a company cannot denigrate or downgrade, try to show that other companies product is bad product and it would amount slander or defamation and actionable claim can be imposed on the company defaming the other companies product . Companies resort to comparative advertising whenever they are trying to launch a new product and its strategy to gain more customer rather than providing information to customers about the launch of new product by a company. Comparative advertising can be in both forms explicit or indirect way . In direct form clear cut comparison is made between products of two brands and what are their features, quality, pricing etc are compared ,for example advertisement showing a direct comparison between RIN VS TIDE . In indirect way or indirect form comparison is made by saying brand X and all other brands available in market, brand X products are better and available at cheap rate, this is also done by blurring the logo of other brands, recent example is of advertisement in which a customer is choosing Oven Story Pizzas over dominos where the logo of dominos was clearly visible though it was blur trying to show that Oven Story Pizzas are better than Dominos. Comparative advertising is actionable in India by both the statue and unfair trade practise under the common law, and to prove that it should contain false claims and it should be motivated by malice or should have malicious intent. The case of Chloride industries ltd vs. Standard batteries ltd (Chloride Industries ltd Vs Standard Batteries ltd, 1994) had led the judiciary set some principles which every companies needs to keep in minds while practising comparative advertising, some of them are: 1. a tradesman or company can declare his or their good to be best in the world even if their claim is false. 2. A tradesman or company can even declare that his or their goods are better than their competitor even if they are not better or good than their competitor. 3. A company or tradesman for the reason of claiming that their or his good are better than their competitor they can compare the advantages of their product with the other companies product. 4. While comparing the good of own company with the other company , one cannot say that other companies product is bad , and if they say so , then they are slandering the good of the other company , or defaming the other companies good which amounts to defamation, which is not permissible. 5. If there is no defamation then no action lies and if defamation is held then the court has the power to grant injunction to not to repeat such advertising and damages to company whose good or product was defamed (salhotra, 2009).
Legality of Comparative Advertising
In India comparative advertising is governed by some laws and rules such as MRTP Act, Trademark Act, 1999 and Consumer Protection Act, 1986, Advertising Standard council of India etc . According to Trademark act, 1999 it allows comparative advertising but it should not denigrate the goods and services of another brand and if it does so then it would not only infringe the trademark of the another brand it would also cause product disparagement which is covered under the domain of the unfair trade practises. Moreover according to section 29 (8) of the trademark act, 1999 the registered trademark will be infringed if any comparative advertising while using the trademark of another brand if:
1. If the advertisement takes unfair advantage of trademark and it is contrary to the true practises in the commercial matter.
2. If the comparative advertisement is detrimental to the distinctive character of the brand.
3. If comparative advertising is against the reputation of trademark of another brand.
In the case of Pepsi Co. Inc. and Ors. Vs .Hindustan Coca Cola Ltd
(Pepsi Co. Inc. and Ors. v. Hindustan Coca Cola Ltd , 2003) Issue of trademark and product disparagement was raised. In the advertisement a child was offered two drinks where the labels of the brands were covered and the child tastes two different drinks ,likes drink which is more and sweet and the labels are shown and they narrator says kids love the co cola drink which is more sweet and adults would also get inclined towards co cola drink , the Pepsi’s product “thumbs up “ was defamed where murmuring was shown and Delhi high court stated and gave their idea related to slander that any tradesman or company can show their goods or merchandise as better or different from other brands product and not similar , but the companies cannot or they are not qualified to say that their other brand products are terrible and not suited for advertising and promote their own product , “and concluded that near comparative advertising can't be allowed which ruins or criticizes the trade mark or trade name of the rival” (Pepsi Co. Inc. and Ors. v. Hindustan Coca Cola Ltd , 2003) and hence injunction was provided against the advertisement made by co cola ltd and it was not allowed to be repeated and telecast any more in any form of media and Pepsi ltd were also provided with damages
Advertising Standard council of India is self regulated body who administers the advertisements which are going to be published in different media forms. It ensures that advertisements which are published are not against the society or the public policy also which means that advertisement related to surrogacy, liquor and tobacco, etc are not allowed to be aired on TV or not allowed to be printed or published in newspapers or in other forms also. Comparative advertising is not banned in India but permissible comparison is allowed in India but the advertising companies needs to follow certain guidelines which has been established by the Advertising standard council of India , the body also regulates comparative advertising they are;
1. The comparison should be on the basis of clear aspects of what the advertised products are being compared with other company’s products.
2. the content of the comparison should not be in such a manner that it confers an artificial advantage to the advertisers who are trying to convey a message that better bargain are available which differs from what is truly available .
3. The comparison should be factual, accurate and should be backed by evidences and facts.
4. Due to the comparison; the consumer should not be misled about the product advertised or the product compared.
5. The comparative advertisement made should not discredit other company’s product, advertisement or advertisers indirectly or directly by implication.
6. The comparative advertisement made should not take any unfair advantage of the goodwill attached to the trademark attached to other firm or its products or nor make any unjustifiable use of name or initials of other party.
7. The comparative advertisement should be free from plagiarism, it should not be similar to any advertisement, the general layout, sound, design and effects should be different from competitor’s advertisement. The comparative advertisement also comes under the ambit of Consumer protection act, 1986 under the clause of unfair trade practice. It is defined as means a trade practice, which for the purpose of promoting the sale, use or supply of any goods or for the provision of any service , adopts any unfair method or any unfair or deceptive practice including any of the following practices which includes ; Falsely represent that the goods are of a particular standard, quality, quantity, grade, composition, style, or (salhotra, 2009)model Falsely represent that the services are of a particular standard , quality, or grade Makes : 1.a false or misleading representation concerning the need for, or the (salhotra, 2009)usefulness of , any goods or service.
2. Falsely represent that the goods are of a particular standard, quality, quantity, grade, composition, style, or model.
3. Falsely represent that the services are of a particular standard, quality, or grade. So action can also lie under the consumer protection act for the comparative advertising.
Ethical issues with comparative advertising
Exaggerated statements made by the companies in advertisement for the purpose of attracting customers to particular good or service is known as puffery or puffing. Statements made in puffing are subject to opinion rather than actual representation of facts. It is assumed that puffery acts as opinion for the consumers which cannot be verified, a sensible consumer will not take puffery literally. The main difference between puffery and factual representation is they specify the degree towards their claim on the product (Munjal, 2016). Best example of puffing is red bull advertisement where they say red bull gives you wings while actually it does not. Use of children in comparative advertisement for products related to children drink like Horlicks and Complan is just to win the emotions of the consumer and induce them to buy the product, rather than providing actual information about the product. Also the companies indulge themselves in unethical practice or unfair practises where they try to mislead the consumer or make false claims about their products which is unethical in nature, and the interest of the consumers in such situations is protected by consumer protection act and competition law of the country.
Chloride Industries ltd vs. Standard Batteries ltd: this case law had laid down the guidelines which every company needs to follow while using comparative advertising and how comparative advertising should be done and this case has helped the author to use this guidelines as to how comparative advertising should be done helped to formulate authors opinion on this topic .
Munajal: in this article the author has talked about the unethical practises which are followed by the companies practising advertising and comparative advertisement. The author in the article has mentioned about the unethical practise followed by the companies practising comparative advertisement like puffing, false claims, misleading advertising, use of children in comparative advertisement etc. The author has taken the viewpoint of the author of the article for the ethical issues concerned or related to comparative advertisement.
Pepsi Co. Inc. and Ors. v. Hindustan Coca Cola Ltd : in the case the issue of the product dispragement and infirigmenet of trademarkk was the issue. The product of Pepsi lltd was defamated clearly in the advertisement. The case law helped the author to explain the con concept of product dispragement and infirgement of the the trademark according to the trademark act ,1999.
Sallhotra Anuradha : in this article the author has talked about the fundamental right of freedom and expression of speech acoring to the artcie 19 (1) (g) of the constitution . advertising is the part of the commercial sppech and it should not be banned , or else it will violate the fundamental right and hamper the interest of the consumers and consumers will be unaware of the market siutations and they will be misleded sometimes. The auhtor has used the information of this article to exlpain the importnce of commercial speech in todays globalized world why advertisment are necceasry.
Salhotra anuradha : in the same article the author has talked about the types of comprative advetisment which prevails in the market which are indirect and direct form of comprative advertisment , the author in the present paper has used the information from the article to explain the forms of comprtive advetisment with the help of examples .
To conclude this paper I would say banning the comparative advertisement is not a way to resolve the ethical and legal issues allied with it. I would recommend there is dire need of specific law which governs the advertisements in India like there is federal trade commission in USA which governs the advertisement in USA. Also comparative advertisement also creates confusion in minds of consumers regarding the products due to the deceptive advertisements, so it pinpoints the role of companies which make such advertisements they should make the advertisements in such a way that provide information to the consumers about the products compared not leave them confused and misled .And also the laws should favour the interest of the consumers and the producers also, so it should be balanced properly.