BY: S.PARVADAVARDINI TRADEMARK DEPARTMENT ALTACIT GLOBAL
Comparative advertising is advertising where one party advertises his goods or services by comparing them with the goods or services of another party. Such other party is usually his competitor or the market leader of that good or service . Comparative advertising is a widely used form of commercial advertising in many countries.
<ul><li>Influence Consumer Behavior </li></ul><ul><li>Focus on the Superiority of the Advertisers Product over the Competitors </li></ul><ul><li>Bring out negative aspects of the Competitors product </li></ul><ul><li>Main aim is comparison of the factors of one trader’s products with those of another </li></ul>
<ul><li>1980’s Cola Wars </li></ul><ul><li>Regaul v/s Ujala Case </li></ul><ul><li>The use of comparative advertising has been well established in political campaigns </li></ul><ul><li>HCL Photo Copiers Vs. Modi Xerox </li></ul>
<ul><li>Section 29(8) of Trademarks Act, 1999 </li></ul><ul><li>Section 30 (1) of Trademarks Act, 1999 </li></ul><ul><li>Section 36 A (1) (x) of MRTP Act, </li></ul><ul><li>The Trade Marks Act, 1999 </li></ul>
<ul><li>The Trade Marks Act, 1999 permits comparative advertising by means of using another's trademark, however in that process the advertiser doing so cannot disparage the goods or services of another. Any such act disparaging the goods or services of another shall not only be an act constituting infringement of trademark, but also shall constitute product disparagement which covers the domain of unfair trade practices. </li></ul>
Section 29(8) of Trademarks Act, 1999 <ul><li>A registered trade mark is infringed by any advertising of the </li></ul><ul><li>trade mark, if such advertising: </li></ul><ul><li>(a) takes unfair advantage of and is contrary to honest practices in industrial or commercial matters or </li></ul><ul><li>(b) is detrimental to its distinctive character or </li></ul><ul><li>(c) is against the reputation of the trade mark. </li></ul>
Section 30 (1) of Trademarks Act,1999 <ul><li>Nothing in section 29 shall be construed as preventing the use of a registered trade mark by any person for the purpose of identifying goods or services as those of the proprietor provided the use </li></ul><ul><li>(a) is in accordance with honest practices in industrial or commercial matters. and </li></ul><ul><li>(b) is not such as to take unfair advantage of or be detrimental to the distinctive character or repute of the trade mark. </li></ul>
Section 36 A (1) (x) of MRTP Act <ul><li>“ Unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provisions of any services, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely :- (1) the practice of making any statement, whether orally or in writing or by visible representation which; </li></ul><ul><li>[ (x) gives false or misleading facts disparaging the goods, services or trade of another person </li></ul>
<ul><li>The key elements for dispute in Comparative Advertising are: </li></ul><ul><li>Although comparative advertising is legal, the competitor is still entitled to sue if it is targeted in an advertisement and anything said about it is false or misleading. </li></ul><ul><li>Even if the competitor is not specifically mentioned but may be identified by implication, it may be seen as the target. </li></ul><ul><li>Once the competitor is seen as the target (either by implication or by specific naming), if any fact stated or impression created is false or misleading the advertiser may be liable for damages. The competitor may also be entitled to an injunction to stop the campaign. </li></ul><ul><li>Special care must be taken in the use of a design trademark in a comparative advertisement. </li></ul><ul><li>In a comparative advertising campaign which involves the use of a competitor's trademark, the emphasis should be on promoting the product based on the differences, not the similarities, between the two products. </li></ul>
<ul><li>Advertising Standards Council of India, has specified the following norms comparative advertising in it’s Code of Conduct: </li></ul>
<ul><li>The Delhi High Court summarized the law of Comparative Advertising through the following grounds: </li></ul><ul><li>A tradesman is entitled to declare his goods to be the best in the world, even though the declaration is untrue. </li></ul><ul><li>He can also say that his goods are better than his competitor’s, even though such statement is untrue. </li></ul><ul><li>For the purpose of saying that his goods are the best in the world or his goods are better than his competitor’s he can even compare the advantages of his goods over the goods of others. </li></ul><ul><li>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. </li></ul><ul><li>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. </li></ul>
HLL advertised its toothpaste ‘New Pepsodent’ as “102% better than the leading toothpaste”. In the television advertisement, samples of saliva are taken from two boys. While the sample was being taken from the boys, they were asked the name of the toothpaste with which they had brushed in the morning. One boy said Pepsodent, the response of the second boy was muted, however, lip movement of the boy would indicate that he was saying “Colgate”. Also, when the muting was done, there was a sound of the jingle used in the Colgate advertisement. It was decided that, the word toothpaste had become synonymous with Colgate over the years and a reference to “leading brand” was to Colgate. Thus it became a case of Comparative Advertisement which led to the disparagement of Colgate’s products
<ul><li>The Delhi High Court explained the concept of disparagement stating that “a manufacturer is entitled to make a statement that his goods are the best and also make some statements for puffing of his goods and 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, a manufacturer is not entitled to say that his competitor’s goods are bad as to puff and promote his goods, ” and concluded that comparative advertising cannot be permitted which discredits or denigrates the trade mark or trade name of the competitor. </li></ul>
In late 2008, the makers of Horlicks, GlaxoSmithKline Consumer Healthcare (GSK), and the makers of Complan, Heinz India (Heinz), came out with advertisements that directly compared the brands using the competitor brand's trademarks. Industry observers felt that in their bid to outdo each other, the two companies had ended up denigrating the competitor brand. Usually issues related to disparaging ads by rival companies were resolved by the Advertising Standards Council of India (ASCI). But with constant mudslinging at each other, the two companies decided to solve the issue in courts. In September 2008, Heinz moved the Bombay High Court objecting to the Horlicks ad , while in December 2008, GSK approached the Delhi High Court against the Complan advertisement. The decision is still pending.
HUL's new Rin campaign claims in an advertisement that Rin provides more brightness in comparison to Tide Naturals, which is the new product that Procter & Gamble has launched a couple of months ago in the mass segment positioning it against Rin as well as Wheel. Procter & Gamble subsequently challenged Tide's claim in the Chennai High Court On March 1, the court asked HUL to modify the advertisement since they were not really able to substantiate the claim. A written judgment is still awaited on this matter.