Whether comparative advertisement is permissible in law?

The Division Bench of this Court in Pepsi Co. Inc. (supra) held that a tradesman by comparison cannot slander or defame the goods of the competitor nor call them bad or inferior. Thus comparative advertising is permissible as long as while comparing own with rival/competitors product, the latter's product is not derogated, discredited, disgraced, though while comparing some amount of ‘showing down’ is implicit; however the same should be within the confines of De Beers Abrasive supra and should not be of a slighting or ‘rubbishing’ nature.

In the High Court of Delhi at New Delhi

(Before Rajiv Sahai Endlaw, J.)

CS(OS) No. 459/2016 & IA No. 11244/2016 (u/o XXXIX R-1&2 CPC)

Procter & Gamble Home Products Private Limited 

v.

Hindustan Unilever Ltd.

Decided on February 17, 2017.

Citation:2017 SCC ONLINE DEL 7072

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Whether comparative advertisements are permissible in India?

In the opinion of this Court, it is open to an advertiser to highlight a special feature/characteristic of his product which sets it apart from its competitors and to make a comparison as long as it is true. For instance, if a chocolate biscuit manufacturer issues a comparative advertising highlighting that his product has the highest chocolate content and the lowest price, then in the opinion of this Court the rival manufacturer cannot seek an injunction on the ground that fibre content or calorific value or protein content had not been compared.

49. In other words, it is open to an advertiser to objectively compare one or more material, relevant, verifiable and representative feature of the goods and services in question which may include price. There is no requirement in law to disclose each and every factor/characteristic in comparative advertisement. No reasonable observer would expect one trader to point to all the advantages of its competitor‟s business and failure to do so does not per se take the advertising outside what reasonable people would regard as „honest‟.

50. It is also pertinent to mention that it is the defendants‟ case that the impugned adverting campaign compared all the common features mentioned in all competitors packaging.

51. Further, tomorrow, if plaintiffs in response to defendant‟s advertising campaign, launch a comparative advertising highlighting its alleged salient features like power factor, life of bulb, it cannot be injuncted on the ground that the factor of brightness/lumens has not been mentioned.

52. In fact, mere trade puffery, even if uncomfortable to the registered proprietor, does not bring the advertising within the scope of trade mark infringement. Much advertising copy is recognised by the public as hyperbole. The Act, 1999 does not impose on the courts an obligation to try to enforce, through the back door of trade mark legislation, a more puritanical standard.

53. From the aforesaid discussion, it is apparent that the impugned advertising campaign is not misleading and there is no denigration or disparagement of plaintiffs‟ mark. Further, the factors compared are material, relevant, verifiable and representative features. Consequently, present application is dismissed, but with no order as to costs.

I.A. 1893/2015 [U/o. 39 Rule 2A CPC] On 22nd January, 2015 it was orally agreed by the counsel for the defendants that the defendants would not extend the impugned comparative advertising campaign to the electronic media.

During the course of hearing, the advertising campaign launched by the defendants on the television channels was shown to this Court. The advertising campaign launched by the defendants on the television is not comparative advertising inasmuch as it does not mention the name of any of the rivals in the trade, including that of the plaintiffs.

The Judge relied on one of the codes of the ASCI (Advertising Standards Council of India) wherein it states that comparative advertisements are permissible in the interest of vigorous competition and public enlightenment as long as these conditions are fulfilled.

Delhi High Court

Havells India Ltd & Anr vs Amritanshu Khaitan & Ors on 17 March, 2015

Author: Manmohan
CS (OS) 107/2015

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Distinction between Comparative advertising and infringement of Trade mark

 Comparative advertising which clearly falls within the scope of section 30(1), furnishes a useful illustration to demonstrate that the proviso to section 30(1) does not provide a defence to infringement generally and only applies qua such use of a trade mark as is permissible by the opening or principle part of the section. The very purpose of comparative advertising negates infringement. Infringement defeats the purpose of comparative advertising. Comparative advertising is antithetical to infringement. Comparative advertising by its very nature involves the manufacturer of products sold under his mark conveying to the public a distinction between his goods sold under his mark and his competitor's goods sold

under the competitor's mark. The purpose of comparative advertising is, in fact, to indicate to the public that the advertisers' goods sold under his mark do not originate from his competitor and vice-versa. In comparative advertising the advertiser advocates the superiority of his goods and services and invites the market to prefer them to those of his competitor. He does so by representing his business to be different from that of his competitors. He does so by disassociating himself and his goods and services sold under his mark from those of his competitor sold under the competitor's mark. In doing so, he refers to the competitor's mark. That he does to trace the origin of the goods and services of the competitor to the competitor. He does not use the competitor's mark to pass off his goods as those of the competitor for that would defeat the purpose of his advertisement.

Bombay High Court

Skol Breweries Limited vs Fortune Alcobrew Pvt. Limited on 31 March, 2012

Bench: S.J. Vazifdar

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