LegaLogic-Legasee – IPR Newsletter: CONCEPT OF COMPARATIVE ADVERTISEMENT – April 2022
Every company wants to promote its products, services, and brands in different styles. Advertising is the most crucial step in determining product’s future prospects. It is the most advantageous way to catch the attention of the consumers in the market. Speaking legally, there are multiple players in the market focusing on increasing their advertisements and many times in order to gain attention and pecuniary gain, they use some tactics which land them in trouble. Comparative advertisements is one such unfair trade practice. Comparative advertisement means advertisement of a particular product, or service by comparing it against a competitor’s product for the purpose of showing why one’s product is superior. Recently, Domex, a Hindustan Unilever brand, has launched a new ad campaign across print, digital and other media, at least some of which explicitly compares itself to Reckitt Benckiser’s toilet cleaner brand ‘Harpic’. One of the ads in the campaign begins in a supermarket with a woman picking up a bottle of Harpic when her son inquires if the brand can also kill toilet odour. At this point, television actresses Divyanka Tripathi (Hindi version) and Revathy (Tamil version) explain that Domex uses fresh guard technology to combat toilet odour, something that the other brand can’t. Reckitt Benckiser has already approached the Delhi High Court and an interim injunction has been granted against one of the print advertisements.
MEANING OF COMPARATIVE ADVERTISEMENT
Comparative advertising, or combative advertising is an advertisement in which a particular product, or service, specifically mentions a competitor by name for the express purpose of showing why the competitor is inferior to the product naming. Comparative advertising is a strategy used by companies to represent their product as superior in comparison to that of a competitor. When a comparative advertisement makes a comparison that is misleading and/ or derogatory, it crosses over into what is referred to as product disparagement. Clearly, there is a fine line to be drawn between the two concepts, and one that invites considerable attention from trademark owners, especially because consumer behaviour can be easily influenced through such advertisements to a brand’s advantage or disadvantage.
With advertising being a largely self-regulated industry in India, there is limited vigilance on the manner in which corporate entities market their brands. The law on trademarks makes reference to when comparative advertisements can be regarded as infringement, and when disputes get out of control, the courts step in. Section 29(8) of the Trade Marks Act, 1999 clearly states that an advertisement of a particular mark/brand amounts to infringement of the trademark if it takes unfair advantage of another trademark, or is detrimental to the very distinct character of the other trademark, and is also against the trade mark’s reputation.
“As per ad regulator Advertising Standards Council of India (ASCI), comparative advertisements are permitted in the spirit of promoting healthy competition and consumer choice. However, brands must ensure that comparisons are factual and capable of objective substantiation. Advertisements must also refrain from denigrating, attacking or discrediting other brands or advertisers”.
LEGAL PERSPECTIVE OF DEFENCE OF HINDUSTAN UNILEVER ON THE GROUNDS OF NOMINATIVE FAIR USE?
Section 30(1) of the Act justifies comparative advertising, authorising the use of a registered trademark for the purpose of identifying goods or services of the competitor but such use must only be done in accordance with the honest and fair-trade practices without any mala fide intent in order to take advantage of a competitor’s goodwill.
Under Section 30(2)(d) of the Act, nominative fair use by a third party does not qualify as trademark infringement if neither the purpose nor the effect of the use of the mark causes any confusion as to trade origin.
“In its most basic form, nominative fair use of a trademark is a legal doctrine that can be used as a defence in some types of trademark infringement cases, such as when a registered brand is used by someone else to allude to the mark owner’s goods or services. This use is deemed nominative because it “names” the genuine owner of the mark”.
In the abovementioned advertisement, there is no suggestion of sponsorship or endorsement. However, it isn’t difficult to identify the product, i.e., Domex, without referring to Harpic. It can be further contended that the purpose of the advertisement to present the Domex as an odour remover could have been achieved without mentioning or referring to the Harpic trademark. Thus, the defence of nominative fair use is not available for Hindustan Unilever.
Comparative advertising itself is not illegal, advertisers should, however, guarantee that the basis for comparison is fair and accurate, and not chosen to give themselves an unfair advantage. Other marketers must not be unfairly disparaged or disregarded in such comparable commercials. The Supreme Court in Tata Press v. Mahanagar Telephone Nigam Ltd. had observed that ads not only benefit manufacturers, but also allow for a free flow of information in a free market economy, achieving the larger purpose of public awareness. In the present instance, the advertisement could have reflected upon the special characteristic of Domex, i.e it can improve toilet odour without referring to the brand name of the opponent.