ASIA PACIFIC: INDIA

COMPARATIVE ADVERTISING: INCREASING INCIDENTS IN INDIA
Author: Sharad Vadehra, Kan and Krishme

Trade rivalries and comparative advertising have been an old phenomenon in the advertising world and the customers have witnessed innumerable product wars on their television sets.

The concept of comparative advertising emerged in the nineties. The nineties era witnessed the Pepsi-Coke war which was followed by complan-horlicks tug of war and the latest in the basket is the Rin-Tide war. All these advertisements disparaged the competitor’s product to showcase the superiority of their product in the market.

Advertisements in India are regulated by the Advertising Standards Council of India which is a self regulatory body and lays down a code to be followed by the advertising industry which is not in competition with the law. With respect to comparative advertising, the code lays down as follows:

To ensure that Advertisements observe fairness in competition such that the Consumer’s need to be informed on choice in the Market-Place and the Canons of generally accepted competitive behaviour in Business are both served.

1. Advertisements containing comparisons with other manufacturers or suppliers or with other products including those where a competitor is named, are permissible in the interests of vigorous competition and public enlightenment, provided:

(a) It is clear what aspects of the advertiser’s product are being compared with what aspects of the competitor’s product.
(b) The subject matter of comparison is not chosen in such a way as to confer an artificial advantage upon the advertiser or so as to suggest that a better bargain is offered than is truly the case.
(c) The comparisons are factual, accurate and capable of substantiation.
(d) There is no likelihood of the consumer being misled as a result of the comparison, whether about the product advertised or that with which it is compared.
(e) The advertisement does not unfairly denigrate, attack or discredit other products, advertisers or advertisements directly or by implication.

2. Advertisements shall not make unjustifiable use of the name or initials of any other firm, company or institution, nor take unfair advantage of the goodwill attached to the trade mark or symbol of another firm or its product or the goodwill acquired by its advertising campaign.

3. Advertisements shall not be similar to any other advertiser’s earlier run advertisements in general layout, copy, slogans, visual presentations, music or sound effects, so as to suggest plagiarism.

Trade Marks Act, 1999
Section 29 (8) of the Trade Marks Act, 1999 provides certain limitations to comparative advertising, according to which advertising infringes on a trade mark when it:

• takes unfair advantage and is contrary to honest practices in industrial or commercial matters; or
  
• is detrimental to its distinctive character; or
  
• is against the reputation of the trade mark.

Section 30 (1) of the Act read as: ''Nothing in Section 29 shall be preventing the use of registered trademarks by any person with the  purposes of identifying goods or services as those of the proprietor, provided the use:

• is in accordance with the honest practices in industrial or commercial matters, and
• is not such as to take unfair advantage of or to be detrimental to the distinctive character or repute of the trade mark.'

JUDICIAL PRONOUNCEMENTS

Reckitt & Colman of India Ltd. v. Kiwi T.T.K. Ltd
The Honorable Court laid down the following guidelines for comparative advertising:

1. A tradesman is entitled to declare his goods to be the best in the world, even though the declaration is untrue.
2. He can also say that my goods are better than his competitors', even though such statement is untrue.
3. For the purpose of saying that his goods are the best in the world or his goods are better than his competitors' he can even compare the advantages of his goods over the goods of others.
4. He, however, cannot while saying his goods are better than his competitors', say that his competitors' goods are bad. If he says so, he really slanders the goods of his competitors. In other words he defames his competitors and their goods, which is not permissible.
5. If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the Court is also competent to grant an order of injunction restraining repetition of such defamation.

It was held that a manufacturer is entitled to make a statement that his goods are the best and also make some statements for puffing his goods and the same does not give rise to a cause of action to other traders or manufacturers of similar goods as there is no disparagement or defamation to the goods of the manufacturer so doing. However, as manufacturer is not entitled to say that his competitor's goods are bad so as to puff and promote his goods and defame the goods of another.

In Dabur India Limited v. Emami Limited, it was held that even if there be no direct reference to the product of the Plaintiff and only a reference is made to the entire class of Chayawanprash in its generic sense, even in those circumstances disparagement is possible. There is insinuation against user of chayawanprash during the summer months, in the advertisement in question, for Dabur Chayawanprash is also a Chayawanprash as against which disparagement is made. To the same effect is the judgment of Calcutta High Court in Reckitt & Colman of India Limited v. M.P. Ramachandran and Anr.

In Dabur India Limited Vs. Colgate Palmolive India Ltd, the Court’s decision proceeded on the same lines and laid down as follows, "Therefore, in a suit of this nature one has to look at whether the advertisement merely puffed the product of the advertisement or the advertiser in the garb of doing the same directly or indirectly contended that the product of the other trader is inferior. It was sought to be contended that insinuations against all are permissible though the same may not be permissible against one particular individual. I do not accept the same for the simple reason that while saying all are bad it was being said all and everyone is bad and anyone belittling the description of everyone is affected thereby. Generic disparagement of a rival product without specifically identifying or pin pointing the rival product is equally objectionable. Clever advertising can indeed hit a rival product without specifically referring to it. No one can disparage a class or genre of a product within which a complaining plaintiff falls and raise a defence that the plaintiff has not been specifically identified."

There is another side to the coin as well, when the statement disparaging the plaintiff’s product is true in comparative advertising, no relief can be given to the plaintiff. In Reckit Benckiser (India) Limited Vs. Naga Limited and Ors. , the Plaintiff had filed a Suit for permanent and mandatory injunction, being aggrieved by the Defendant's television commercial. The issue was whether the Defendant could be held to have disparaged the Plaintiff's product even though no false statements have been made by the Defendant? And it was held that if a competitor makes the consumer aware of his mistaken impression, the Plaintiff cannot be heard to complain of such action. The Learned Judge in the judgment commented,”I find it difficult, nay impossible, to hold a party liable for libel when all that has been stated by the competitor is the truth. Truth is always a complete defence against any assault or challenge regardless of whether any damage is sustained as a result of it.”

REIGNITING THE DEBATE
However, recently Hindustan Unilever Limited, an Indian company targeted Procter and Gamble’s detergent brand “Tide” in the commercial for its detergent brand “Rin”. The matter was ultimately put to rest by the Calcutta High Court issuing an interim order against “Rin” showcasing its commercials.

Facts

In the advertisement, one woman's basket has a packet of “Rin” detergent powder, while the other has a packet of “Tide Naturals”. The “Tide” lady boasts confidently about “Tide's” fragrance combined with whiteness, the theme on which the “Tide Naturals” campaign was based. The “Rin” lady does not show any reaction but has a beam on her face. Thereafter, the school bus stops and drops off the two children.

The child of the woman carrying “Tide” is wearing a visibly dull shirt, while behind him a boy comes out wearing a spotless white shirt, who runs across the shocked “Tide” lady towards the mother carrying the “Rin” packet.

Making the advertisement more aggressive, the boy asks his mother, "why is aunty startled?" ("chaunk" or startle has been used  in Procter & Gamble's earlier punch line) as the advertisement concludes with a voice-over that “Rin” is 'better' than  “Tide”, when it comes to whiteness and at a shocking price of Rs. 25. The advertisement also claimed that the claim of effectiveness was based on laboratory tests.

Decision

Justice Patheriya of Kolkata High Court ruled that the present commercial amounts to a clear case of disparagement i.e. a manufacturer is not entitled to say that his competitor's goods are bad so as to puff and promote his goods and issued an injunction.

The injunction has been granted on the following grounds:
(a) The Hindustan Unilever Advertisement depicted “Tide Naturals” whereas the voice-over was for “Tide”;
(b) The laboratory reports produced by Hindustan Unilever under cover of two affidavits in support of its claim of superior whiteness had inherent defects i.e. the advertisement drew comparison of samples of “Tide” and “Tide Naturals”;

Commercial Advertisement is an unethical method of promoting a product and the law also prohibits it. This is evidently clear from the judgments mentioned above. Advertisements have a lot of impact on the viewer’s mind. As a matter of fact, of late, it is a general notion that comparative advertisements help in the better promotion of the targeted product which steals the viewer’s sympathy. Thus, comparative advertisements are a lost case on all fronts. It helps in the promotion of the rival product and is a waste of money because eventually the telecast of the advertisement is banned. Also, in view of the ever growing corporate strength and competitiveness in the Indian Economy, it appears that the electronic media will be a platform for many more comparative advertisements which will pave way for the growth of stronger advertisement laws.

STOP PRESS

After the mud slinging tactics adopted in their detergent wars, corporate giants Hindustan Unilever Limited and Procter & Gamble again knock the Court’s door. This time the bone of contention between HUL and P&G relates to promotion of their shampoo brands “Dove” and “Pantene” respectively. The matter is still sub-judice and therefore not much can be commented on the outcome of this war.