India: Comparative Advertising Through Innuendo: Defaming Without Naming

INTRODUCTION

"Taste the thunder", "Connecting People", "You and I in this beautiful world", "I am loving it", "The taste of India", No more tears", are few of the numerous taglines, the mention of whose immediately brings the picture of their respective brands in our mind. Advertisements have taken a significant place in today's economy and are playing a vital role both via print and electronic media in the promotion and marketing of business entities. Now, we recognize many brands through their advertisements. With the advent of technology and scientific developments, we are witnessing a new technique of advertisement every now and then, like associating celebrities with the brands, animations, jingles etc. to mention a few. Another latest trend is to put a tag of "scientifically proven" to the products, from toothpastes to cosmetics every leading brand is nowadays using this formula for promotion and advertisement of their marks.

All the examples stated above are methods of advertisement of one's own goods and services. But it seems, that much is not enough for the marketing of a brand. Merely "My product is the best" strategy is not enough and today. Much emphasis is also given on proving "My product is better than the other". This is where the intellectual property arena of "Comparative Advertising" comes into picture. "Comparative advertising is an advertisement in which a particular product, or service, specifically mentions a competitor by name for the express purpose of showing why the competitor is inferior to the product naming it. Comparative advertising, also referred to as 'knocking copy', is loosely defined as advertising where "the advertised brand is explicitly compared with one or more competing brands and the comparison is oblivious to the audience1."

COMPARATIVE ADVERTISING THROUGH INNUENDO

There have always been controversies and legal issues surrounding such comparative advertisements. India has also been witnessing such instances. In the year 2013 itself, there have been two legal controversies between renowned Business entities on the issues of "Comparative Advertising". The Delhi and Calcutta High Courts have analyzed various aspects involved with comparative advertising in the cases of Colgate Palmolive Company & Anr. v. Hindustan Unilever Limited2and Hindustan Unilever Limited v. Reckitt Benckiser (India) Ltd3. A unique question of law was examined in the later case in which 4 advertisements, two each of defendants and the Plaintiffs were in question. One of the advertisements in question was an advertisement in print media of Dettol Healthy Kitchen gel in which the there was a comparison between two dish wash gels, one being the defendant's Dettol and other a "leading dishwash bar". The advertisement in question showed a white plate which was vertically divided into two halves and on the bottom of each half there are words "leading dishwash" and "Dettol Healthy Kitchen Gel" written. Two bottles one green in color as Dettol Healthy Kitchen Gel and one yellow in color were also shown. A magnifying glass is placed over the plate vertically examining the diameters of the plate in a manner that half of it covers the portion of "Dettol Healthy Kitchen Gel" and the other half covers the portion of "leading dishwash". The portion covering "Dettol Healthy Kitchen Gel" is shown with only one black mark and the portion with words "leading dishwash" written on it showed several such black marks like black insects. These black marks were said to depict germs. The plaintiffs; Hindustan Unilever Limited argued that the reference to "leading dishwash" necessarily pointed out at their product Vim, by way of Innuendo.

The doctrine of Innuendo traces its birth mainly under the laws of defamation wherein a libel or defamation through Innuendo may be explained as any indirect or subtle, usually derogatory implication in expression which is allegedly libelous or slanderous to the reputation of someone. The plaintiffs argued that since VIM has 2/3rd of the market share in terms of market share and turn over, it is the leading dishwash bar and hence the Advertisement clearly refers to it. The plaintiffs pleaded for an injunction restraining the defendants form circulating this advertisement on the ground that person with ordinary prudence would identify the said product with VIM and hence it would hamper the reputation and prestige of the product in the market. On the other hand, the defendants argued what they are showing is an honest and bonafide comparative advertisement which is permissible under the provisions of Section 29(8) and Section 30 of The Trademarks ACT, 1999 which runs as follows-

Section 29 (8) - A registered trade mark is infringed by any advertising of the 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.

Section 30: Nothing in section 29 shall be construed as preventing the use of a registered trade mark by any person for the purpose 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 defendants argued that what they were showing was the bare truth and the same falls under "commercial speech" and hence it was covered by the Section 30 which provides an exception to Infringement and permits comparative advertising provided it is honest and fair. The defendants also invoked the right of Freedom of Speech & Expression as provided under Article 19 of the Constitution of India and stated that as long as the advertisement shows the truth, it is not actionable.

The Judge ruled out that the "law related to Innuendo in defamation, applies to cases of disparagement of goods, therefore, the above special circumstance is known to people who have knowledge of dishwash." Another question which was examined was that the advertisement was merely a "puffery". Puffing is generally an expression or exaggeration made by a salesperson or found in an advertisement that concerns the quality of goods offered for sale. It presents opinions rather than facts and is usually not considered a legally binding promise4. As decided by the court in the case of Hindustan Unilever Limited v. Procter & Gamble Home Products Limited5 "Making puff is permissible in law but disparagement of the goods of the rival would be illegal. The puffing of one's product is only limited to unbelievable claims which can be said to be harmless. In other words, mere puffing of one's product is not expected to be taken seriously by the public watching the advertisement. The advertisement ceases to be mere "puff" when the advertisement claims that what is stated in the advertisement is correct." The Courts further said that the advertisement with the mention that the Dettol Healthy kitchen gel cleans 100 times more germs than the leading dishwash bar which cannot be said to mere puffing and is a serious comparative advertisement. It is permissible to show that Dettol Healthy Kitchen gel kills almost 100 percent of the germs but it is not permissible to show that at the same time no germs are killed or removed by VIM and this would certainly denigrate "VIM". Therefore, the advertisement was said to be one sided, unfair and devoid of honest intention. After analyzing all the contentions out forth by the Plaintiffs and Defendants the learned Judge passed an order of Injunction restraining the defendant company from showing the advertisement.

CONCLUSION

The use of a mark not only includes indicating its origin, but also distinguishes it or compares it with the performance of other marks. Therefore, comparative advertising in itself cannot be said to be disparagement or defaming per se but Courts have been on numerous instances drawing the peripheries as to what constitutes a healthy comparative advertising or puffing for the promotion of the mark and what is defaming and disparagement of someone else.

Footnotes

1. http://en.wikipedia.org/wiki/Comparative_ Advertising

2. 2014 (57) PTC 47[Del][DB]

3. 2014 (57) PTC 78 [CAL]

4. http://legal-dictionary.thefreedictionary.com/Puffing

5. 2010 (43) PTC 460

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