In modern times, advertisements play an essential role towards promotion of ones’ products and services. However, advertisers tend to make comparison of their products or services with those of the competing brands in order to promote their sales. B Natural used the names of its competitors Tropicana and Real Juice in a recent advertisement very creatively.

Source: Times of India (April 6, 2018)

While engaging in such form of comparative analysis the advertisers must ensure that their advertisements observe fairness in competition. Comparison must not abuse the confidence of the consumer by representing misleading facts which in turn hampers the ability of the consumer to make an informed choice.

Permissible comparison

 Although comparative advertisements are not prohibited in India, the Code for Self-Regulation formulated by the Advertising Standards Council of India (hereinafter referred to as “ASCI”) monitors the legality of advertisements and only permits advertisements containing comparisons with other competitors provided:

  1. The comparison with the competing products must indicate clear parameters as to what aspects of the advertiser's product are being compared with what aspects of the competitor's product.
  2. The subject matter of comparison is not chosen in such a way as to confer an artificial advantage upon the advertiser or so as to suggest that a better bargain is offered than is truly the case.
  3. The comparisons are factual, accurate and capable of being backed by substantial facts and evidence.
  4. The consumer is not likely to be misled as a result of the comparison being made, whether about the product advertised or that with which it is compared.
  5. It should not unfairly denigrate attack or discredit other products, advertisers or advertisements directly or by implication.
  6. It should neither make unjustifiable use of the name or initials of any other entity, nor take unfair advantage of the goodwill attached to the trademark or symbol of another firm or its product or the goodwill acquired by its advertising campaign.
  7. It should not be similar to any other advertiser's earlier run advertisements in general layout, copy, slogans, visual presentations, music or sound effects, so as to suggest plagiarism.

Judicial Approach

     

While determining the legality of comparative advertisements, the Courts in India have laid down the following principles:

1. A tradesman/ advertiser is entitled to declare his goods to be best in the words, even though the declaration is untrue.[1]

2. A tradesman/ advertiser can say that his goods are better than his competitors, even though such statement is untrue.1

3. For the purpose of saying that his goods are better than his competitors', the tradesman/ advertiser can even compare the advantages of his goods over the goods of other.1

4. However, the tradesman/ advertiser cannot while saying his goods are better than his competitors, say that his competitors' goods are bad as it may amount to slander/ defamation his competitors and their goods, which is not permissible.1

5. 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.1

6. An advertisement is considered to be defaming if it is undervaluing, bringing discredit or dishonor upon the competitor’s product.[2

7. Although, the tradesman/ advertiser is entitled to boast that his goods are the best in the world and the same does not provide a cause of action to any other trader/ advertiser or competitor until it causes disparagement or defamation to the aggrieved.[3]

8. Glorifying one’s product was permissible provided the rival’s product was not denigrated. [4]

9. In comparative advertising, a certain amount of disparagement is implicit and as long as the advertisement is limited only to puffing, provided that the comparison does not show competitor’s goods in bad light, there can be no actionable claim against the same.[5]

10. Comparative advertising is permitted when the following conditions are met[6]: -

  1. goods or services meeting the same needs or intended for the same purpose;
  2. one or more material, relevant, verifiable and representative features;
  3. products with the same designation of origin.

 

11. It must be ensured that statements of comparison with the competitors’ products are not defamatory or libelous or confusing or misleading.6

Conclusion

While advertising or selling products, the advertisers must keep in mind that any comparison or assertions made with any competitors’ products must not violate the legal provisions causing disparagement to other brands.