Comparative Advertisements

    Comparative advertising and disparagement
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    While comparative advertising may promote consumer interest, care should be taken to ensure that there are no false representations or that it does not disparage other goods. Nandan Pendsey and Himanie Katoch discuss the factors which separate permissible from prohibited comparative advertisements

    By now most of you would have seen the recent controversial Rin versus Tide advertisement on television. For the benefit of those who missed it, the advertisement was a direct comparison between two competing detergent brands, namely Hindustan Unilever’s brand ‘Rin’ and Proctor & Gamble’s brand ‘Tide Naturals’- where Rin was portrayed as a more effective detergent than Tide Naturals. The Calcutta High Court, in a suit filed by Procter & Gamble [CS No. 43 of 2010], held that the slogan “Tide se kahi bahtar safedi de Rin”, the depiction of one of the children alighting from the bus in a dull shirt, coupled with the association of the Tide packet with the dull shirt, constituted a clear case of disparagement and therefore restrained Hindustan Unilever from telecasting the same.

    Disparagement typically takes place when the statement made about a competing product is false and misleading and is made with the intention to malign or condemn a competitor’s product. While comparative advertising (with factual and truthful comparisons) is permissible and is considered healthy for competition, disparagement is not. Section 29 (8) of the Trademarks Act, 1999 (“Trademarks Act”) considers ‘disparagement’ as infringement by stating that the use of a registered trademark by an advertiser would result in an infringement if it inter alia (i) takes unfair advantage of the trademark’s reputation; (ii) is contrary to honest practice; (iii) is detrimental to the trademark’s distinctive character; or (iv) or damages the reputation of the trademark.

    Section 30 (1) of the Trademarks Act permits comparative advertising as long as the advertisement does not fall within the ambit of Section 29(8) of the Trademarks Act, ie the advertisement is in accordance with honest practices and does not cause detriment to the distinctive character or repute of a trademark.

    Disparagement could be direct or could be by way of an innuendo. In the case of Paras Pharmaceuticals Limited v. Ranbaxy Limited [2008 (38) PTC 658 (Guj)], the Gujarat High Court dealt with two rival marks- Moov and Volini.

    Ranbaxy’s advertisement of comparing Volini with a purple coloured unnamed pain reliever was considered to be infringement of the mark owned by Paras Pharamceuticals as its product Moov was identified by the public at large with that colour. Ranbaxy was directed to change the colour of the packet in its advertisement that was being compared with Volini.

    While the Rin vs. Tide case seems to be the most recent (and direct!), there have been many instances in the past where two competing brands have resorted to ad-war on television. Various High Courts have delved into the nuances of comparative advertising and have laid down the difference between mere comparison and disparagement. One of the earliest cases on this point is Reckitt & Coleman of India Ltd v Kiwi TTK Ltd (63 (1996) DLT 29), where in the Court held that puffing was allowed and that the advertisement can declare that the advertised goods are the best in the world, even though this declaration is untrue. The Court further held that an advertisement cannot, while stating that the advertised goods are better than those of a competitor, state that the competitor’s products are bad, as this would be defamation. Similarly, in Pepsico Inc. v. Hindustan Coca-Cola Limited [2003 (27) PTC 305 (Del)] the Delhi High Court held that while boasting about one’s product is allowed, disparaging a rival’s product is not. The Delhi High Court further held that if a commercial is depicted in a manner to condemn the competitor’s product, the commercial would be considered as disparaging. Subsequent Delhi High Court decisions have also towed the same line.

    However, the Madras High Court decision in Colgate-Palmolive (India) Limited v Anchor Health & Beauty Care Private Limited [(2008) 7MLJ 1119], seems to be inconsistent with the Delhi High Court decisions in the cases discussed above. In this case, Anchor in its advertisement claimed inter alia to be the ‘first’ all round protection toothpaste and the ‘only’ toothpaste containing certain ingredients.

    Although Anchor’s advertisement did not constitute disparagement and merely amounted to puffery, the Madras High Court restrained Anchor from using the words ‘only’ and ‘first’ as the same was false and misleading. The Madras High Court further held that consumer interest should be taken into account when assessing comparative advertising.

    In the absence of any recent Supreme Court decision on this point, the law seems to be slightly unclear in relation to the permissible degree of puffery allowed by courts in India. However, what seems to be clear is that the use of ‘commendatory’ expressions in comparative advertisements is acceptable so long as what is claimed is not false or misleading and further the advertisement in general does not disparage other products.

    The writers may be reached at:
    nandan.pendsey@azbpartners.com
    himanie.katoch@azbpartners.com

    Please send in your queries to chesta1@itp.com

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