India: Roads Ahead- Comparative Advertisement

‘Comparative Advertisement’ as a concept may be new to India and the development of law by the Supreme Court of India and various High courts may be in the making but there are abundant judgements on this issue by the courts of England and USA. It may be explained as an advertisement where a party advertises his goods or services by comparing them with goods and services of another party, by projecting the advertiser’s product to be of the superior or same quality or by denigrating the quality of the compared product. The underlying assumption is - by comparative advertising the consumer comes to know of the two products and their comparative features/merits and thus gets benefited. This globalised environment with fiercely competitive market of fast growing consumer products holds wide scope for comparative advertising. It is the new or unknown brands, which mainly benefit from comparative advertising as they try to transfer the potential intangible values associated with the compared brand, to the new brand. The first case to deal with the extent of permissibility of such comparative advertising in India arose before the Calcutta High Court in Reckitt & Colman of India Ltd. v. M.P. Ramchandran Anr. (1999 PTC (19) 741) (though the judgement was delivered on 19^th Feb. 1996, it was reported 3 years later). Thereafter, various cases demanding attention to comparative advertising came before various courts, which further cleared the emerging concept. The case Godrej Sara Lee Ltd. v. Reckitt Benckiser (I) Ltd. (2006 (32) PTC 307 (Del.)) throws some light on this new area of law.

The plaintiff in the instant case was engaged in manufacturing insecticide with the trade name ‘HIT’ under two versions- one for killing cockroaches which was packed in red coloured container and the other for killing mosquitoes, packed in black coloured container. The defendant’s single product ‘MORTEIN’ was meant for destroying both cockroaches and mosquitoes which fact was highlighted in the advertisement on the electronic media. Plaintiff alleged that the defendant disparaged and denigrated the plaintiff’s product, which was impermissible. The punch line of the plaintiff’s advertisement was ‘do can kyon’ and that of the defendant was ‘do tarfa hamla’. Although the advertisement was on air since February, 2005 the plaintiff filed the suit against the defendant in September 2005 with the plea that it came to know of the impugned advertisement only in September 2005.

The advertiser has right to boast of its technological superiority in comparison with product of the competitor. Insinuating campaign against the competitor’s product is not permissible, however, the advertiser may highlight the positive features of his product and even claim that his product is better than his competitors but he is not permitted to project his competitor’s goods to be bad. In an action for disparagement it must be proved that the impugned advertisement is untrue, misleading and show’s the competitor’s products to be of an inferior quality. Relying on these principles enunciated in various judgements vis-à-vis Pepsi Co. Inc. and Ors. V. Hindustan Coca Cola Ltd. and Anr. (2003 (27) PTC 305 (Del.) (DB)), Reckitt & Colman of India Ltd. v. Kiwi T.T.K. Ltd. (1996 PTC (16) 393) etc., the court in Godrej Sara Lee Ltd.’s case held that the defendant provided a better and more convenient solution by giving two-in-one product. Telling the consumer that he could use one single product to kill two different species insects without undermining the plaintiff’s products by no stretch of imagination amounted to disparaging the product of the plaintiff. The choice was ultimately of the consumer. He would still like to buy the plaintiff’s products thinking that solution/spray for killing one particular insect would be more effective than the product of the defendant killing two insects. Even the punch line of both the advertisements were held to be two responses. Further it found it to be highly improbable that the plaintiff did not come to know of the impugned advertisement before and spotted it only in September, 2005 when the impugned advertisement was repeatedly aired on various TV channels since February, 2005.

The case besides holding that the consumer’s choice is ultimate highlights a particular comparative advantage of convenience in using the defendant’s product over the plaintiff’s product.

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