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Features

A thin line between defense and offence - Comparative Advertising

Divya Balasundaram
Apr 2009

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In today's fiercely competitive world, advertisements are an essential component of trade and commerce. We have some highly creative ads in India (think of the Amul billboards, Chloromint ulta socho and many others). One segment of ads that is highly entertaining as well as controversial is comparative advertisements between companies, each seeking to promote their products and push those of a competitor down.

Legal position and essential principles

What is the legal position in India with regard to these comparative advertisements? The essential principles of comparative advertising were set out in a judgment of the Calcutta High Court in Reckitt & Colman of India Ltd v. M. P. Ramachandran and Ors.

The principles are:

A tradesman is entitled to declare his goods to be best in the words, even though the declaration is untrue;
He can also say that his goods are better than his competitors', even though such statement is untrue;
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;
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;
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 the repetition of such defamation.

These principles have been accepted and followed in a number of cases on the topic, and the Courts have allowed sufficient leeway for creativity in ads, whilst at the same time, drawing the line at ads that adversely or unfairly affect another trader.

Some illustrative cases

An ad for KIWI liquid shoe polish was found disparaging of Cherry brand liquid shoe polish, as a bottle marked 'others' and having a red blob similar to Cherry shoe polish was shown to have polish dripping from it, whilst KIWI polish was shown as not dripping and hence, a superior product - Reckitt & Colman of India Ltd v. Kiwi T.T.K. Ltd.

An advertisement in which a boy was shown preferring THUMS UP to PEPSI on the

ground that the former was a stronger drink while the latter was meant for children, was held to be disparaging a famous case of Pepsi Co., Inc. And Ors. v. Hindustan Coca Cola Ltd. In this case the Court also observed that in examining an ad, a three formula test is to be followed - examining intent of a commercial, its manner and storyline, and the message that is sought to be conveyed.

The advertisement asking the viewers to forget CHYAWANPRASH in summer months and to take to AMRITPRASH, was the subject matter of dispute in Dabur India Ltd v. Emami Ltd. Another advertisement showing the tooth powder manufactured by a competitor to be abrasive, was found to be disparaging - Dabur India Limited v. Colgate Palmolive India Ltd.

In these two cases, it was noted that disparagement of a class or genre of rival products even without specifically naming the competitor or its product is objectionable. If a category of a product within which a complaining plaintiff falls is disparaged, it cannot be a defense that the plaintiff has not been specifically named.

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