India: Should Comparative Advertising Be Allowed?

Last Updated: 16 September 2013
Article by Jaya Moorjani

Introduction

The Delhi High Court ("the Court") by its judgment dated August 21, 2013 dismissed the injunction petition filed by Colgate against Pepsodent. The Pepsodent-Colgate ad war had started on August 9, 2013 with the release of Pepsodent's latest advertisement that used Colgate's name in their ad claiming 130% better protection. This led Colgate to file a case in Delhi High Court on August 13, 2013. The court was not satisfied that Pepsodent's latest advertisement denigrated Colgate or has showed that it is better than Colgate. The present bulletin will discuss the highlights of the case filed before the Court and also visit the regulations governing comparative advertising in India.

I. Facts of the case

Colgate Palmolive (India) Ltd. ("Colgate") filed a suit against Hindustan Unilever Ltd. ("HUL") on August 13, 2013 for an interim injunction. HUL had launched its Pepsodent Germicheck's advertisement on August 9, 2013 which compared the toothpaste's germ attack power with Colgate Strong Teeth claiming that Pepsodent Germicheck has "130% superior" germ attack power over Colgate Strong Teeth after four hours of brushing. Colgate claimed the interim injunction against HUL on the following grounds:

  1. The claim made by HUL that Pepsodent Germicheck had 130% attack power was a false statement and in violation of several provisions of the Code of Advertising Standards Councils of India, 1985 ("ASCI") as well as the Drugs and Cosmetics Act, 1940 as it amounted to "misbranding".
  2. The TV commercial commenced on August 9, 2013 and print advertisement appeared in the front page of the Delhi edition of "Hindustan Times" dated August 11, 2013 portrayed bad image of Colgate's product and falsely conveyed that the use of Colgate could cause cavities. The advertisements were viewed in the Court several times during the course of arguments and the observation made was that the TV commercial portrays that Triclosan an ingredient in Pepsodent stays in the mouth four hours after brushing and qualifies a "preventive cavity test". But Colgate contended that no such test exists in the world. Then again, the Colgate Boy was shown brushing his teeth in an improper manner, whose teeth had cavities and he seemed to be unhappy which implies that Colgate's toothpaste could cause cavities.
  3. Colgate contended that HUL's past record showed that HUL has made a habit of introducing false and misleading advertisements and increase its market share dishonestly. It had a history of making false claims in respect of its products. Cases such as: Reckitt Benckiser (India) Ltd. vs. Hindustan Unilever Ltd.1(hereafter Dettol vs. Lifebuoy case), Reckitt Benckiser (India) Ltd. vs. Hindustan Unilever Ltd.2(hereafter Dettol Liquid case) and Reckitt Benckiser (India) Ltd. vs. Hindustan Unilever Ltd.3were cited.
  4. It was argued that the words "Pepsodent now better than Colgate Strong Teeth" in the print advertisement were meant to convey that Colgate Strong Teeth was no longer a good product. Also, the word "Attaaaack" used in the ad was an attack on Colgate and not on the cavity causing germs.
  5. Colgate apprehended a loss of market share if the HUL was not restrained from circulating these ads.

The submissions made by HUL in reply to the case filed were as below:

  1. In this regard, the decision in Dabur India Limited vs. Colortek Meghalaya Pvt. Ltd. was cited to show that courts have allowed comparative advertising.
  2. HUL asked the court not to adopt a hyper technical view and not to analyse an advertisement like a statute or a clause of an agreement. As their intent was not to denigrate the product or the brand of Colgate.
  3. HUL submitted that the whole purpose of these advertisements was to compete with Colgate at the price segment at which it was selling Colgate Strong Teeth and the aim of HUL was to show that the superior product that Colgate could offer was always marketed as a premium product.

II. Judgment

On the basis of the judgments given in the earlier cases such as Dabur India Ltd. vs. Colortek Meghalaya Pvt. Ltd. and Reckitt and Colman of India Ltd. vs. M.P. Ramchandran and Anr.4the Court dismissed the case by saying that HUL is not denigrating the product of Colgate. It said that it is unable to identify any unfairness in this practice that may attract the clauses of ASCI Code. Comparative advertising is permissible as long as the competitor's product is not derogated and disgraced while comparing.

In the case Dabur India Ltd vs. Colortek Meghalaya Pvt. Ltd., it was held that certain factors have to be kept in mind while deciding a question of disparagement. These factors are (i) intent of the commercial; (ii) manner of the commercial; and (iii) storyline of the commercial and the message sought to be conveyed. Further, in the case Reckitt and Colman of India Ltd. vs. M.P. Ramchandran and Anr.5, it was held that (i) a seller is entitled to declare his goods to be best in the world, even though his statement is not true; (ii) He can say that his goods are better than his competitors' goods, even though his statement is not true; (iii) he can compare the advantages of his goods over the goods of others; (iv) however, he cannot say that his competitors' goods are bad.

According to the court too much could not be read into the expressions of each individual character in the advertisements. Also, the court noticed that the teeth of the Colgate Boy had not been zoomed into and no gaps or cavities could be seen. The expressions and effects used in the advertisement only showed that Pepsodent was a better product but did not disparage Colgate's product. Also, the court said that as there is a comparison of products and an attempt to show that one is better than the other, then obviously both boys cannot have happy faces. Also, the court held that the word "attack" in the print ad was related to Pepsodent's germ fighting capability and was not an attack on Colgate.

III. Analysis

The ASCI has adopted a Code in 1985 for Self-Regulation in advertising. It is a commitment to honest advertising and to fair competition in the market place. ASCI Code deals with the various provisions pertaining to advertisements. Colgate claimed that HUL has violated the provisions of chapter IV of ASCI Code. Chapter IV of the Code pertains to the fairness in competition. The broad aspects covered by it are as under:

  1. Advertisements containing comparisons with other manufacturers or suppliers or with other products including those where a competitor is named are permissible in the interests of vigorous competition and public enlightenment, provided:

    1. It is clear 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 substantiation.
    4. There is no likelihood of the consumer being misled as a result of the comparison, whether about the product advertised or that with which it is compared.
    5. The advertisement does not unfairly denigrate attack or discredit other products, advertisers or advertisements directly or by implication.
  2. Advertisements shall not make unjustifiable use of the name or initials of any other firm, company or institution, nor take unfair advantage of the goodwill attached to the trade mark or symbol of another firm or its product or the goodwill acquired by its advertising campaign.
  3. Advertisements shall 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.
  4. As regards matters covered by sections 2 and 3 above, complaints of plagiarism of advertisements released earlier abroad will lie outside the scope of this Code except in the under-mentioned circumstances:

    1. The complaint is lodged within 12 months of the first general circulation of the advertisements/campaign complained against.
    2. The complainant provides substantiation regarding the claim of prior invention/usage abroad.

Keeping in view the above points, it cannot be concluded that HUL disparaged the product of Colgate. However, in the case of Tata Press Ltd. vs. MTNL6, the Supreme Court opined that it is not good to declare own goods to be the best and better than his competitors' but if it does so, the advertiser must have some reasonable factual basis for the assertion made. In the case, Marico Limited (Saffola) vs. Adani Wlmar Ltd. (Fortune) the plaintiff claimed that the defendant denigrated Saffola by making false, unsubstantiated and misleading claims that Fortune RBO is healthier than Saffola but the learned Judge declined the injunction saying that the intent, manner and message of the ad of defendant is of its product containing a higher quality of Oryzano sufficient to meet the daily requirement of human body of Oryzanol, and which the other products do not. Hence, after taking into consideration all the above judgments ASCI contended that comparative advertising by means of using other's products is known to be admissible; however, while doing so, the advertiser should not in any way disparage the goods or services of the other. Comparative advertisement is different from disparagement. Disparagement of a competitor's product may be specific or generic without specifying rival, both are equally objectionable in a court of law. Comparative advertising is something that the challenger brand should undertake. A brand owner has to keep in mind how strong the competition is. You have to be in a disadvantageous position in order to challenge and comparison should result in some loss of reputation, goodwill or business. Changes in the market take place and competitors need to stay on top of this change. Comparative advertising is bound to get more and more aggressive and competitive. Most brand owners say that it is their right to keep consumers informed. If Pepsodent is superior to Colgate by a precise 130%, it is Pepsodent's right and duty to keep consumers informed.

Conclusion

In comparative advertising a company shows how its product or service is superior to that of its competitors by comparing the benefits and costs within the advertisement itself. While interpreting, the content and manner of the advertisement shows the intent behind the advertisement. Therefore, the seller must ensure that no designs applied to the advertisement result in a breach of the threshold of permissible competitive/comparative advertising. In other words, in judging the "overall effect" of the advertisement, the Court may have to look into the question of what caught or catches the eye or attention of the audience. As far as the Colgate-Pepsodent case is concerned, it has created a buzz for both the brands and experts feel it will create publicity for Pepsodent as well as Colgate.

Footnotes

1 Reckitt Benckiser (India) Ltd. vs. Hindustan Unilever Ltd. 200 (2013) DLT 563

2 Reckitt Benckiser (India) Ltd. vs. Hindustan Unilever Ltd. 2013 V AD (Del) 94

3 Reckitt Benckiser (India) Ltd. vs. Hindustan Unilever Ltd. 151 (2008) DLT 650

4 Reckitt and Colman of India Ltd. vs. M.P. Ramchandran and Anr. 1999 (19) PTC 741

5 Reckitt and Colman of India Ltd. vs. M.P. Ramchandran and Anr. 1999 (19) PTC 741

6 Tata Press Ltd. vs. MTNL (1995) 5 SCC 139

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
S.S. Rana & Co. Advocates
Khurana and Khurana
Singh & Associates
Global Jurix, Advocates & Solicitors
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
S.S. Rana & Co. Advocates
Khurana and Khurana
Singh & Associates
Global Jurix, Advocates & Solicitors
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions