Shubhi Verma (102)

What is Comparative Advertisement

?

What is

Disparaging

Advertisement

?

MRTP ACT 1969

Competition Act 2002

Consumer Protection Act 1986

Trademarks Act 1999

Objective Methodology Hypothesis

The objective of the research is to bring out the liberties given to the companies to in order

to promote their goods though not disregarding the goods of its rival partners.

Towards the end of the research we will be able to clearly understand the difference

between comparative advertising and product disparagement: what is permissible and what

is prohibited. We will also be comparing the laws established in various countries regarding

comparative advertisements. The sole motto of the research is to explore, describe, explain,

compare, evaluate, criticize and draw inferences to bring about reforms if necessary or to

simply commend the existing system.

In sight of the present topic for research, mainly case laws, conventions and most

importantly laws of the land will be taken into consideration to frame an outline of the entire

scenario.

It can be hypothesized that comparative advertising can lead to stronger competition

however one fact remains undoubtedly accepted that disparaging products is illegal.

USA &

GERMANY

USA

Lanham Act 1946

Federation of Trade

Commission (FTC)

Suit is maintainable

or Not ?

Here is a look at a case study:

In the case, ITC Ltd. v. Punchgini (482 F.3d 138 (2d Cir. 2007) ITC operated a

“Bukhara” restaurant in India and sold “Dal Bukhara” packaged foods in the U.S.

Punchgini operated a “Bukhara Grill” restaurant in the U.S. ITC’s claim was that the

defendants implied that their restaurant was affiliated with ITC’s products and this

constituted as false advertising. The lower court dismissed ITC’s claims for lack of any

substantial ground.

The U.S. Court of Appeals for the Second Circuit affirmed this decision and held that

ITC’s mere plans of opening “Bukhara” restaurants in the U.S. did not give rise to any

claim. Since Punchgini (the defendants) were not comparing their restaurants to ITC’s

packaged food products, ITC’s use of “Dal Bukhara” name on its products, did not

exactly amount to any claim of false advertising.

In conclusion, it is one of those concerns where the legal team works in close

connection with the marketing team. It is imperative to keep a close watch on this

issue so as to prevent any misuse by defamation or any innuendo of negativity. This

has ironically disturbed the credibility and innovative use of advertising. This

negativity, surely brings better recall to a potential consumer, but in the hindsight, it

can differ from person to person.

The New German Law Against Unfair CompetitionCame into force on 8th July 2004 (Revised)

For the advancement of the German law with relation to EC laws

Section 3-6 talks about the unfair competition1. Section 3 – Defines unfair competition

2. Section 4- components of unfair competition

3. Section 5 – Misleading Advertisements

4. Section 6 – Comparative Advertisements

Remedies Available Under This Act Section 8 – If the reputation of the plaintiff is harmed the suit can be

maintained in three ways –

• Loss of Profit

• Plaintiff can demand for a legal license

• Claim for the actual damage

Comparative

Advertising

Directly Comparative

Non Comparative

Indirectly Comparative

Advertising

Law In INDIA

Truthfulness and Honesty

Not offensive

Safeguards & Fairness

Constitutional Sources

ASCI

Hamdard Dawakhana

Article 19

c) Reference to the major brand instead of

referring to the competitor by name directly, but such

reference makes the customer recognise the

major brand.

a) Reference to a competitor’s name;

b) Reference to a competitor’s trade mark;

There are different methods of Comparative

Advertising which are usually taken up by the traders to promote their

products or services, which include:

Colgate v. Pepsodent CS (OS) No. 1588 of 2013

Dismissing Colgate Palmolive India Ltd’s plea for interim injunction

against HUL, Justice S Muralidhar said, “ The court is not

persuaded to hold at this stage that the impugned TV

advertisement or the printed advertisement by the HUL is

disparaging of or denigrating the product.

Tata Press Ltd v. MTNL & ORS

Comparative advertisment is often supported on the basis of the argument established in this

case which states freedom of speech as stated under article 19(1) of the constitution of India.

Duracell International Ltd V. Ever Ready Private Ltd

• Ever Ready (Pty) ltd had lodged a complaint with the A.S.A in 2004 protesting the Duracell advertisement and claim that Duracell batteries last up to “6 times longer than the ordinary zinc carbon batteries.”

• Ever Ready (Pty) Ltd provided evidence in the form of the tests conducted by the South African Bureau of Standards (SABS) that the Duracell clain is untrue and misleading to the south african consumer.

• As a result the case was sent to legal arbitration

• The arbitrators finding was “ Ever Ready’s complaint is valid and Duracell’s claim is invalid and misleading to the public..”

Section 29 (8) of the Trademarks act 1999 states that “ a registered trademark is infringed by any advertising of the trademark if such advertising

• Takes unfair advantage of and is contrary to honest practices in industrial and commercial matters

• Is detrimental to its distinctive character or

• Is against the reputation of the trademark

CONCLUSION

Section 29 (8) and section 30 (1) of the trademarks act, are adequate to

address issues related to trademarks infringement, made in the garb of

comparative advertising.

Judicial pronouncements on the issue have also made it clear that there is no

harm in comparing your goods with those of a competitor, but the comparison

should be fair and should not bring disrepute to the competitor’s products or

trademark, i.e. comparative advertising leading to product disparagement is

not permissible.

The position is more or less the same in almost all the countries, which allow

use of another’s trademark in comparative advertising.

Bibliography

•Disparaging Advertising and the Media War

•Comparative advertisement and product disparagement vis-à-vis Trademark Law 1999

•Law comparing advertisement and disparagement

•But Names Won’t Necessarily Hurt Me: Considering the Effect of Disparaging Statements on Reputation

•The tort of disparagement and the developing first amendment

Journal –

•Disparaging advertising (IIPRD)

•Disparaging advertisement ( Legal blog)

•Comparative advertising ( LawMantra)

Blog –