Introduction
Comparative advertising is one of the latest techniques to grab consumers’ attention. Comparative advertising, otherwise known as advertising war, is a process where a particular company compares its product with a competitor to show why its product is superior. Comparative advertisement sometimes helps consumers to choose the better product, but sometimes it could mislead the consumers and create confusion.
Comparative advertising is terrifying for marketers. Of course everyone wants to showcase their brand as superior to their competitor, but often it’s found that’s not true. ASCI (Advertising Standard Council of India) is an independent body to bring advertising discipline amongst advertisers and is very active and prompt with their actions.
Comparative advertising may also lead to defamation and compensation cases. And if wrong claims are made, then a single lawsuit can eat years of brand profits or change the existence of the company that makes false claims. Comparative advertising displays a comparison of two different brands on numbered variants like price and quality by referring to the alternative brand by name, visual illustrations, or other distinctive attributes. Advertisers employ this technique to increase their visibility in the market and to promote their product.
Legal provision (ASCI)
Comparative advertising is legal to the extent that it does not hamper the reputation of the competitor’s mark and is in accordance with the honest practices in industrial matters. A person while advertising his goods can compare the advantages of his goods over the goods of his competitor, but he cannot say that his competitor’s goods are bad, as this may lead to disparagement of the goods of his competitor. A person cannot use any false or misleading statement while promoting his goods.
The Advertising Standards Council of India has specified certain norms or guidelines that should be kept in mind while promoting their goods through ads in its Code of Conduct, 1985. The guidelines state as follows:
- Honest representation;
- Must not be offensive in any way to the general public;
- Ads must not in any way hamper competition.
- Ads must not be used for the promotion of products hazardous or harmful to society or to individuals, particularly minors, to a degree unacceptable to society at large.
Cases Study
A few points of caution are also given by the High Courts in the same regard in order to raise awareness among the producers of their rights and limitations, allowing them to prevent all kinds of legal liabilities.
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 so as to puff and promote his goods and concluded that comparative advertising cannot be permitted, which discredits or denigrates the trademark or trade name of the competitor.
There is no specific legislative mechanism regulating comparative advertising in India; therefore, the precedents set by various courts are followed while adjudging such matters. Though the courts rule in favor of the liberty to advertise, they do not hesitate in granting injunctions and imposing damages against infringers.
Ad wars: India’s most notable brand battles
Amul Vs HUL (2017)
Amul found itself strapped in legal trouble when Hindustan Unilever Limited (HUL) sued them for disparagement. At the root of the dispute were two advertisements comparing Amul’s “ice creams” to other “frozen desserts”—claiming that the former uses “real milk” while the latter does not.
Complan Vs Horlicks (2017)
The Defendant (HEINZ INDIA PRIVATE LIMITED), on 11th November 2017, published an advertisement for its “COMPLAN” branded health food drink in the newspaper “The Telegraph” (in its Kolkata and Patna editions). The advertisement compared one cup of COMPLAN with two cups of a competing brand, “HORLICKS,” with a disclaimer at the bottom of the page that read, “One cup of Complan (33 g) provides 5.94 g of protein, while two cups of Horlicks (27*2=54 g) give 5.94 g of protein based on the recommended pack dosage….” The Defendant also used a tagline that states, “From Now On, Only Complan.” The Plaintiff (HORLICKS LIMITED) claimed that the Defendant’s advertisement was intentionally and deliberately disparaging its health food drink product, HORLICKS.
Reckitt Benckiser Vs HUL (2013)
Reckitt Benckiser launches Dettol Kitchen and follows it up with a TV ad comparing the cleaning product with HUL’s Vim. HUL appealed to the Calcutta High Court for a stay order, saying the ads were untrue, but it was denied.
It then hit back with ads on front pages of mainline dailies claiming Lifebuoy works better than Dettol antiseptic liquid—HUL’s ad says it has been ‘issued in public interest.’
Hyundai Vs Maruti Suzuki (2012)
Traditional Japanese and Korean rivalry came to the fore again when Korea’s Hyundai Motor went ballistic with its marketing campaign ‘Trendsetter vs. Follower’ on claims of a much-superior small car, the EON, over the newly launched Alto 800 from Maruti Suzuki.
Micromax Vs Samsung (2012)
Micromax took a not-so-subtle dig at Samsung, with its latest ad campaign styled as a ‘sequel’ to Samsung’s Galaxy Y TVCs. The films brought out the product features through dialogue delivered by spunky kids, ending with the same question: “Aapke paas nahi hai, Uncle?”
Micromax responded with a series of films that pick up where the Samsung ads end; the last few words spoken in the Samsung ads are the first words in the Micromax ads. The plot, theme, script, and appearance of the ads have been crafted to look similar to the Samsung ads, so much so that at first glance, one assumes it is a sequel to the Samsung campaign.
2012: The Times of India Vs The Hindu (2012)
TOI launched ‘the Wake Up!’ campaign last year, featuring Chennai readers being put to sleep by a newspaper full of boring news. In an attempt to hit back hard, The Hindu told its readers to ‘Stay Ahead of the Times’ by reading news that was relevant to current affairs instead of Bollywood and celebrity gossip. Television commercials as well as print ads kept the battle between the two publications going.
2012: Micromax Vs Apple (2012)
Micromax took a jab at iPhone with the tagline “i (can afford this)” for its A 70 smartphone, priced at Rs 8,000. When Apple launched the iPhone 4S, Micromax went a step further, releasing new ads for the A75 model that used the tagline “i (can afford this) Phone 4S(ure).”
Ford India’s ‘Swap the drive’ campaign (2011)
Ford India’s ‘Swap the Drive’ campaign in 2011 challenged multiple players. Through this campaign, Ford engaged directly with owners of nine competing car brands, who were given the opportunity to swap their vehicles with models for a week-long test drive. The company then created ads that showed these consumers’ comparisons of their own vehicles vs. Ford’s, prominently featuring the names of rival brands such as Maruti Swift, Maruti Dzire, and Toyota Fortuner.
Hindustan Unilever Vs P&G (2010)
In HUL’s Rin commercial, a pack of Tide Natural, the brand owned by rival Procter & Gamble, was prominently displayed with a voiceover, “Tide se kahin behtar safedi de Rin.”
And HUL’s Clinic All Clear Shampoo spoofed P&G’s Head & Shoulders when it showed Bollywood actress Bipasha Basu searching for a girl with zero dandruff. One girl who does have dandruff mentions the name of her shampoo, making a muted reference to Head & Shoulders.
Nestle Vs Cadbury (2009)
Nestle launched a spoof on a Cadbury ad with the tagline “Khao bina tareekh dekhe,” directly challenging Cadbury, which had advertised its brand with the tagline “Meetha hai khana aaj pehli tareekh hai.”
Complan vs Horlicks (2008)
In September 2008, GSK’s Horlicks showed Horlicks as a better and cheaper option than Complan in terms of nutritional value and market price.
Limitations for comparative advertising
Comparative advertising shall be permitted when the following conditions are met:
- It should not be misleading.
- There is a comparison between the goods and services, which are for the same needs and the same purpose.
- It compares those goods and services where there are relevant features, which may include price.
- It does not create any confusion in the market between the advertiser and a competitor or between the advertiser’s trademarks, trade names, other distinguishing marks, goods, or services and those of a competitor.
- In the reputation of trademarks of a competitor, there is no unfair advantage.
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