In today’s world, where the role of electronic media is rampant, advertising is a major tool to reach the masses. Visual representation has always had a lasting impact on the mind of consumers. Comparative advertising is a practice where a producer while advertising his product compares it with the product of the competitor by reference or by any representation of competitor's product. The producer uses the products of its competitor as a standard or benchmark and claims to exceed it. Comparative advertising displays a comparison of two different brands on numbered variants like price, quality by referring the alternative brand by name, visual illustrations or other distinctive attributes.
The Delhi High Court in Reckitt & Coleman of India v. Kiwi T.T.K[1]., explained the concept of disparagement in regard to comparative advertising, 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.
There is no specific legislative mechanism regulating comparative advertising in India therefore various statutes and the precedents set by various courts are followed while adjudging such matters.
Legal Framework
Trademarks Act, 1999.
Section 29(8) of Trademarks Act, 1999 says that,
A registered trade mark is infringed by any advertising of that trade mark if such advertising:
(a) takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or
(b) is detrimental to its distinctive character; or
(c) is against the reputation of the trade mark.
The above mentioned provision mentions that if an act while advertising a particular mark is done to take unfair advantage of another mark, or is detrimental to the very distinct character of the other mark and is also against the reputation of the trade mark, then such act is an infringement and necessary action can be taken against the infringer. One cannot use the mark of another for his own profit.
Section 30 of Trademarks Act, 1999 says that,
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Nothing in section 29 shall be construed as preventing the use of a registered trade mark by any person for the purposes of identifying goods or services as those of the proprietor provided the use—(a) is in accordance with honest practices in industrial or commercial matters, and (b) is not such as to take unfair advantage of or be detrimental to the distinctive character or repute of the trade mark.
The above mentioned provision justifies comparative advertising authorising every person to use a registered trade mark for the purpose of identifying goods or services of the competitor but such use must only be done in accordance with the honest and fair trade practices. There should not be any mala fide intent to gain advantage of competitor's goodwill behind such use.
Consumer Protection Act, 2019
Section 21 (3) states that the CCPA can prevent the endorser of any such misleading and false advertisements from endorsing any other products or services for a period of one year. The issuer of any misleading advertisements shall also be liable to neutralise the effect of such advertisements.
Section 21(4) of the Act, any person who publishes false and misleading advertisements may be punished with imprisonment or a penalty that may extend up to ten lakh rupees.
Apart from the Statutory provisions, Advertising Standards Council of India has specified the certain norms or guidelines which should be kept in mind while promoting their goods through ads in its Code of Conduct, 1985.
The guidelines states as follows:
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The producer must only make honest representation in the ads;
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The ads must not be offensive in any way to the general public;
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Ads must not be used for the promotions of products, hazardous or harmful to society or to individuals particularly minors, to a degree unacceptable to society at large;
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Ads must not in any way hamper competition.
Remedies Available
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Awarding Damages- Injunction is the only remedy given by the court in the matter of product disparagement. The most potent argument for the popularity of this remedy is that it eliminates the abusive advertisement from the market place. The purpose of which is to implement a court’s judgment that a wrong has been and will be committed, and to restore the beneficiary to its rightful position.
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Corrective Advertising- The Court may order specific language of the corrective advertisement and the duration of the campaign for the above. The statement in the corrective ad would be selected to counteract the misleading or false message of the abusive ad. The corrective advertisement must be designed to stimulate truth in the consumer’s minds while erasing the earlier deceptive message, which caused confusion and thus affected purchase decisions. Furthermore, corrective advertising helps support future truthful ads.
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Monetary Awards- Dishonest comparative advertising is an attempt to malign the competitor’s product. Since it causes special damage to the product, that is pecuniary harm, damages must be awarded to the aggrieved party.
Reference:
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Comparative Advertising: How far can one go?. Link can be retrieved here: https://www.mondaq.com/india/trademark/371760/comparative-advertising-how-far-can-one-go
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Comparative Advertising. Link can be retrieved here: https://www.lexology.com/library/detail.aspx?g=34b2ff7c-f7c8-47ba-a8c8-55e332b2048e
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Comparative Advertising in India: Evolving a Regulatory Framework. Link can be retrieved here: http://docs.manupatra.in/newsline/articles/Upload/F8C99C6C-3A07-4AB3-A181-C6733CE97631.pdf
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Trade Marks Act 1999 Bare Act. Link can be retrieved here: https://legislative.gov.in/sites/default/files/A1999-47_0.pdf
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Consumer Protection Act 2019 Bare Act. Link can be retrieved here: https://egazette.nic.in/WriteReadData/2019/210422.pdf
[1] [1996 PTC (193) T 399]
