By, Ankita Aseri
Advertising plays a significant role in today’s world due to the availability of wide range of products. To attract the customers different advertising techniques are used. One such form is Comparative Advertising i.e. advertising of product by comparing it to its competitors’ goods. It may highlight similarities or differences or set the competitor good as a benchmark. The hurdle of Comparative Advertising is the thin line difference between fair or unfair trade practice which would attract legal consequences. Comparative Advertising in India is governed by Section 29(8)[i] and Section 31(1)[ii] of Trademarks Act, 1999. Section 36A of Monopolies and Restrictive Trade Practices Act, 1969[iii] (MRTP) lists down several unfair trade practices which was later repealed by Section 66 of Competition Act, 2000[iv] which is parimateriato MRTP Act. A regulatory body, Advertising Standards Council of India (ASCI) was established to provide guidelines for ethical advertising and to deal with complaints against false and misleading advertisements. Puffery and denigration can be classified as two forms of Comparative Advertising.
The essentials of honest practices, dilution, and disparagement are not clearly defined in the Trademark Act. The Court while relying on the case of De Beers[v]in Reckitt & Colman f India Ltd. v. M.P. Ramchandram[vi] held that the producer can declare his goods to be the best or even better than his competitors but while doing so he cannot make any statement which might lead to disparagement of his competitor’s good. Disparagement can be defined as an advertisement which undervalue, brings discredit or dishonour upon the competitor’s goods.[vii]In the dispute between AMUL and Hindustan Unilever Limited, it was observed that Amul’s impugned advertisement was disparaging to an entire class of products, i.e. Amul’s ‘real ice-cream’ against ‘frozen desserts’ which were depicted as allegedly harmful to consumers due to the presence of ‘vanaspati/vanaspatitel’.[viii]In the recent controversy of Patanjaliwhich stated that the soaps ‘Lifejoy’, ‘Tears’ and ‘Dhitol’ are ‘chemical based’, and impliedly Patanjali’s soaps are not and these assertions might deceive or potentially deceive customers who might give an impression that all soaps with any ‘chemicals’ are harmful, thereby influencing to buy Patanjali’s soaps which by alleged comparison is not “chemical based”.[ix]Therefore, Delhi High Court barred the advertisement of Patanjali soap. In the recent judgement of Procter & Gamble Home Products Pvt. Ltd. v. Hindustan Unilever Ltd., the Court held that Comparative Advertising per se does not amount to disparagement and the fetters placed by ASCI are that the consumers should not be misled and the advertisement must not unfairly denigrate or discredit other products.[x]
The trend of Comparative Advertising in India is shifting to a more aggressive form i.e. direct Comparative Advertising where a product is directly compared to its competitor by taking the name of competitor. The latest occurrence of direct Comparative Advertising is the advertisement of Samsung mobile that mocks Apple user.[xi] The advertisement is titled as ‘Growing Up’ where an Apple fan finally shifts to Samsung Galaxy 8 after using iPhone from 2007 to 2017. Another incident was the advertisement of Bajaj Auto where it mocks Royal Enfield for riding an ‘Elephant’ and pokes fun by stating ‘Haathi Mat Palo’.[xii] These occurrences demand stronger laws to prevent disparagement of the brands/products. ASCI is a non-government body and it only creates psychological pressure on companies since the decisions are not legally binding. There is no specific legislative mechanism regulating Comparative Advertising in India. Therefore, the interpretations given by the Courts need to be followed while adjudicating matters. Though the Court usually rule in favour of liberty to advertise but they do not hesitate in granting injunctions and imposing damages against the infringers. The status of Comparative Advertising is more liberal in foreign countries like U.K. and USA where the producers are not allowed to make superlative claims about their products without providing any evidence. Similar trend can be adapted in India. If the claim made by a party with respect to its competitor’s product is true, it should be allowed as it will provide consumers with a rationale to choose a better product and it will promote healthy trade practice as the competitor will improve the quality of its goods and will not resort to unfair and misleading means to advertise its product.
[i]§ 29(8), Trademarks Act, 1999.
[ii]§ 31(1), Trademarks Act, 1999.
[iii]§ 36A of Monopolies and Restrictive Trade Practices Act, 1969.
[iv]§ 66 of Competition Act, 2000.
[v]De Beers Abrasive Products Ltd. v. International General Electric Co. of New York Ltd., 1975 (2) All ER 599.
[vi]Reckitt & Colman f India Ltd. v. M.P. Ramchandram, 1999 PTC (19) 741.
[vii]Pepsi Co. v. Hindustan Coca Cola Ltd., 2001 (21) PTC 722.
[viii]Hindustan Unilever Ltd. v. Gujarat Co-Operative Milk Marketing Federation Ltd., 2017 SCC OnLineBom 2572.
[ix]RasulBailay, Delhi High Court stops Patanjali soap advertisement, Economic Times (Sept. 08, 2017; 10:40 AM,), https://economictimes.indiatimes.com/industry/services/advertising/after-bombay-high-court-delhi-court-stops-patanjali-soap-advertisement/articleshow/60399231.cms.
[x]Procter & Gamble Home Products Pvt. Ltd. v. Hindustan Unilever Ltd.,(2017) 238 DLT 585.
[xi]Tom Warren, Samsung returns to mock iPhone X buyers, The Verge (Nov. 6, 2017; 3:46 AM), https://www.theverge.com/2017/11/6/16611758/samsung-mocks-iphone-x-commercial.
[xii]DipayanDutta, Bajaj makes fun of Royal Enfield, Financial Express (Aug. 14, 2017; 12:53 PM), http://www.financialexpress.com/auto/bike-news/bajaj-makes-fun-of-royal-enfield-in-new-dominar-400-advert/806668/.