Blog Details

INTRODUCTION

Comparative advertising is the practise of directly or implicitly naming competitors in an advertisement or comparing at least one explicit attribute. But in some cases, it has been used by the same parent company for its two separate subsidiaries. Generally, advertisers utilize comparative advertising primarily to advance their item at the expense of another’s. It is beneficial for consumers since they get better item information that can help in making rational purchase choices. Comparative advertisements attract more attention and have a higher recall rate. It causes concern for the competitors whose items are being compared because it affects their reputation. It helps brands having less market share to situate itself against the more established brand and to advance its particular advantage. Comparative advertisements are not very effective in terms of marketing, such as brand attitude and purchase goal. In any case, direct comparison can assist a brand in evoking a consumer's brand preference. In some cases, such advertisements cause confusion in the minds of consumers. According to the Indian constitution there are many acts to deal with the subject. Initially, the MRTP Act, 1969 was enacted to anticipate monopolies and restrictive trade practices in the economy. It was updated in 1984 to include a chapter on unfair commercial practises, resulting in the foundation of a body known as the Director General of Investigation and Registration (DGIR). The DGIR might examine an allegation of a restrictive or unfair commercial practices in response to a complaint or on its own. It also created a judicial body called MRTPC. The DGIR presents cases to the seats of commission. The commission, on passing judgment on a practice to be unfair trade practice, could arrange for the offending party to cease or halt the practice. Under 36 A (1) (X) of MRTP unfair trade practice was defined as “a trade practice which, to advance the sale, use or supply of any item, adopts any unfair or beguiling practice remembering for any of the accompanying practices, namely … the practice of making any statement, regardless of whether orally or recorded as a hard copy or by obvious representation, which gives false or misleading facts disparaging the items or trade of another individual”. After the MRTP Act has been repealed, consumer protection act covers unfair trade practices. Notwithstanding, one of its major limitations is that organizations cannot claim help against unfair comparative advertising under this Act.

STATUTORY PROVISIONS IN INDIA

The Monopolies and Restrictive Trade Practices Act of 1984 and the Trade Marks Act of 1999 work together to provide the fundamental framework that governs Comparative Advertising. The Trademarks Act of 1999 incorporated the provisions identified with this concept in Sections 29(8) and 30. (1). According to the rule, comparative advertising is permissible, subject to certain restrictions regarding unethical trade practices.

The Trade Marks Act is an attempt to balance the competing interests of registered trade mark proprietors' rights and a convincing customer interest in useful advertising. According to Section 29(8) of the Trade Marks Act, an enlisted trademark is infringed upon by any advertising of that trade mark that exploits and is in opposition to legitimate practises in mechanical or business matters, is hindering to its unmistakable character, or is against the trade mark's standing.

Section 30(1) has, nonetheless, given a break course to what might somehow have been an encroaching act under Section 29, if the upbraided utilization of the imprint is as per "fair practices" in mechanical or business matters.

UTILIZATION 

Used by the same parent company for promoting its two separate subsidiaries.

Mondelez India decided that the billboards on Mumbai's streets could be used for Cadbury makeover. Cadbury Silk was posted right next to Cadbury 5 Star, and the hoarding drew a lot of attention with its unusual yet intriguing spin-off.

RISK

But same can attract legal proceedings if not used carefully.

Dabur India Ltd. v/s. Colgate Palmolive India Limited. (2004)

Fact: In this case Colgate promoted an advertisement on the visual media where in an actor Sunil Shetty was seen stopping the purchasers from purchasing the tooth powder which was similar to that of Dabur by explaining the ill effects of the lal dant manjan by rubbing it on a pair of spectacles. The rubbing process left marks on the spectacles, which were termed as akin to sandpapering. In addition to this Colgate advertised that their tooth powder was 16 times less abrasive and non-damaging to teeth. Hence Colgate disparaged the goods and was granted injunction by the Court.

Verdict: The Judge did not go into the issue, whether the product referred to in the advertisement is Plaintiff’s product but relied on Dabur India Ltd. v. Emami Ltd.; 2004 (29) PTC 1 (Del) to held that “the plaintiff is certainly entitled to complain as it is one of the largest producers of such tooth powder.” The Judge further held “It was sought to be contended that sly against all are permissible though the same may not be permissible against one particular individual. I do not accept the same for the simple reason that while saying all are bad it was being said all and everyone is bad and anyone belittling the description of everyone is affected thereby. …. I am further of the view that generic disparagement of a rival product without specifically identifying or pinpointing the rival product is equally objectionable. Clever advertising can indeed hit a rival product without specifically referring to it. No one can disparage a class or genera of a product within which a complaining plaintiff falls and raise a defense that the plaintiff has not been specifically identified”. Hence the defendant was restrained from telecasting the TV commercial for “Colgate Tooth Powder''.