Comparative Advertisement and Disparaging
Comparative advertisement can be defined as a methodology which is chosen by the companies where there is explicit comparison with one or more competitors goods or services or the products in general, such comparison is obvious to the audience. It’s often employed by the companies to show its viewers the comparison of its product with the competitors product and highlight its superiority and advantages which lack in the competitors product. The definition given by Black’s Law Dictionary is ‘Advertising that specifically compares the advertised brand with another brand of same product’. This form of advertising is effective and beneficial to the consumers but it can often lean towards false advertising which creates Legal Liability.
Comparative advertisement can often become source of conflict, that is when competitors product is shown in a demeaning manner and disregards the credibility of the competitors product and this leads to disparagement of the product. Any advertisement which disparages a good or service of another would not only amount to infringement of the trademark but it will also amount to product disparagement. The Advertising Standard Council of India in its code states that comparing the products with another must be factual and it should be able to substantiate and not be a source of distortion and misleading the consumers and it further states that it should not denigrate, attack or discredit other products. The main rational behind these advertisements is to demonstrate superiority and to prove how ones product is of high status and product of another is low status, which done to form an opinion in the minds of the viewers that their product is better.
The court of Justice of European community in GB-INNO-BM V. Confederation Du Commerce Luxembourgeois in this case, it held that it’s a necessary that there should be free flow of information for the purpose of protection of the consumers. Section 29(8) of Trademarks Act states that, A registered trademark is infringed if such trademark is used in advertising which takes unfair advantage of and is contrary to honest practices in industrial or commercial matters, detrimental to its distinctive character and is against the reputation of trademark. Section 30(1) of Trademarks Act states the exception, if its in accordance with honest practise in industrial or commercial matters and not meant to take unfair advantage or detrimental to the distinctiveness of the trademark and reputation of it. Section 29(8) and Section 30(1) mentions something known as honest practise, which means comparative advertisement is allowed if it’s used as honest practise but what does Honest practise exactly mean? It basically means that when a reasonable person views the advertisement he is able to judge whether the advertisement is honest or not. In Pepsi co inc v Hindustan coca cola ltd anr in this case court held that reasonable person is presumed to ignore the claims which are exaggerated, hyperbole and he will be able to tell that the advertisement is honest. Comparative advertisement is defended on the grounds that its part of free speech granted under Article 19(1)(a) of constitution. In Tata Press Limited v. mahanagar Telephone Nigam Ltd in this case, court held commercial advertising is allowed under Article 19(1)(a) which allows for free speech and it can restricted in accordance with 19(2).
Trademark exists to differentiate goods and service of one person from another’s and it helps the consumers to identify the goods and their origin. If comparative advertisement is made in such a manner where competitors trademark is used and its used in such a manner which damages and depreciates its product then it will amount to product disparagement and also invoke the trademark infringement issue. In Horlicks Ltd. And anr v. Heinz India Private Limitedin this case, comparison was made between Horlicks and Complan where an advertisement was published by Heinz private Limited where they said that one glass of complan has proteins equivalent to two glass of Horlicks. Horlicks contended that such facts stated in the advertisement are untrue and they’re of misleading in nature. In the advertisement Complan made use of Horlicks trademark which is a registered trademark and they contended that such use of trademark was violative of section 29(8) and 30 of Trademarks Act. Complan contended that use of advertisement is permissible under Section 30(1) as its based on the honest representation. Court in this held in favour of Complan and it applied ordinary person test and stated there is no injury caused to the trademark of Horlicks. As there is clear cut distinction between both the trademarks and Horlicks cannot prevent the use of its trademark for identification of their product. It also held that the main objective of Section 29(8) and Section 30(1) of Trademarks Act is to permit comparative advertising until its done as an honest practise.
Trademark dilution occurs when a trademark is used by a third party and such usage harms the perception of the consumers or it dilutes the famous mark’s distinctiveness, tarnishment and blurring are forms of dilution. In Caterpillar inc v. Mehtab Ahmed and others in this case court held that, as dilution is concerned it is an independent and distinct doctrine. The implicit objective is that consumers can start associating the trademark with a different mark. This leads to impacting the descriptive link between the mark and good is blurred and it eventually impacts the commercial value of the mark and reduces it, hence dilution is not a fair practise.
The definition of blurring given in Black’s Law Dictionary is ‘it’s a form of dilution in which goodwill of a famous mark is eroded through unauthorised usage of the mark by others and in connection with dissimilar products and services. When a famous or distinctive mark or a trademark is used in such a manner in which it leads to impairing the mark’s distinctiveness, it devalues the strength and commercial value of the mark. Courts take into consideration certain factors such as extent similarity between the mark and famous mark, degree of recognition of a famous mark and if the user of the infringing mark intends to create an association with the famous mark. The definition of Tarnishment given in Black’s Law Dictionary is ‘ A form of Dilution that occurs when there is unauthorised usage of the trademark and it subsequently degrades the mark and dilutes its distinctive quality. When there is unauthorised usage of the trademark or famous mark in such a manner which hampers the reputation of the famous mark and it weakens it through unsavoury and unflattering association.
The definition of Puffing in black Law Dictionary ‘as the expression of an exaggerated opinion as opposed to a factual misrepresentation with the intent to sell good or service and it also involves expressing opinions, not asserting something as fact’. In Colgate Palmolive Company& Anr. V. Hindustan Unilever ltd In this case held that, usage of comparative advertisement is to a certain extent is well understood and its allowed until it draws limitation to puffing. Court observed that the law developed from the decision in Calcutta High Court in Reckitt Colman V M.P. Ramchandran up to Godrej Sara less, on the basis of the English precedents it recognised the right of the producers to puff their own products regardless the claim is untrue but without slandering each other’s product. . As Puffing is basically exaggerated claim of one’s product and does not include anything which is injurious to the competitors product.
Advertisements are basic means through which the companies are able to market their product, bring awareness to the public, highlight its usage and functions and able to increase their sales and profits. Certainly when the goods are of similar nature and are produced by different manufactures they’ll be advertisements which involves the comparison between the two products to show why ones product is better than others. When advertisements of comparative nature are made it has to be kept in mind that the comparison should be productive in such a manner that there are no claims made which disregards, disrepute or shows why another’s product is inferior or bad as this leads to disparagement. Factual comparison which is beneficial to consumers and based on truth should be made without damaging reputation of another’s product as product disparagement is prohibited. Comparative Advertisement should be used but only to claim and highlight the factual information and statistics through which a consumer can make an informed choice.
Author: Venkata Raghavan, Proprietor, Escalade Legal Services
Co-Author: Abdul Rahman T, student at Christ University 2019–2024