An analysis of the infringement of trademark by comparative advertising
Advertisement is one of the most effective ways to increase the reach of a product, as it can be done in both audios as well as a visual medium for communicating the features of the product. Comparative Advertisement, as the name suggests is when one brand compares its product to another in order to gain supremacy over that product. It is not a new technique for companies to advertise their product. Especially in today’s time with all sorts of new social media platforms coming up the concept of advertising has also undergone some changes. Brands are trying hard to make their ads humorous to engage with more people and leave a lasting impact. There are various examples of how brands engage on Twitter or Instagram to put themselves ahead of other brands. One of the most recent instances that caught everyone’s attention was when on international women’s day “Burger King” (BK) tweeted about how women should belong in the kitchen, “Zomato” while tweeted roasting BK while also promoting their brand.
Through this Zomato caught everyone’s eye yet again and subtly promoted themselves over Bk.
Through comparing their product with another brand they aim for reaching a vast audience while projecting their product as being superior to the other brand. Comparative advertisement is also used for communicating the value of products of one brand over the other.
It can be divided into two categories:
a) Implicit advertisement- In this type of advertisement, it doesn’t refer directly to the rival’s product, but the object behind the ads is to portray their product as superior to the rival’s. The above example of the social media rivalry can be counted as an implicit advertisement.
b) Explicit Advertisement – This kind of ad directly mentions the rival’s product while comparing their own product with them. While comparing their own product to another company’s product brands target the psychology of the consumers. Explicit Advertisement should be made with caution as there are chances that the ads may result in tarnishing the reputation of the other company.
For e.g. When Coca-Cola called Pepsi Cola “Bacchonwali drink” in one of their ads, it was considered to be tarnishing Pepsi’s image as repeated telecasting of such ad might mislead the consumer. They might think that grownups should not drink Pepsi Cola.
Puffery v Disparagement
Puffery is when one brand projects itself as being superior to another brand through advertisement. Puffery is when a brand inflates its brand image by exaggerating the advantages and quality of its product. It helps in creating a long-lasting image of the brand in the mind of the consumers and makes their ads memorable. Puffery is sometimes also leaving the consumers dissatisfied as they tend to buy the product on basis of such puffery and then get disappointed.
Puffery becomes disparagement/ denigration of the product when in order to show their product superior to the brand; they show the other brand in a negative light to injure their reputation in eyes of the consumers. Disparagement is when puffery crosses it line and hits at the brand image as a whole. Brands demonstrate the other brand’s product as being inferior in terms of quality and other aspects as compared to their own product. This is considered bad in law.
Infringement and Comparative Advertising
Section 29 (8) and section 30(1) of Trademarks Act, 1999 deals with the legality of comparative advertising.
S 29 (8) defines when an advertisement will infringe a registered trademark. If such advertising (a) takes unfair advantage and is contrary to honest practices, (b) is detrimental to its distinctive character; or(c) is against the reputation of the trade mark.
Section 30 (1) is an exception to S 29 (8). It states that it wouldn’t be considered an infringement if it is in accordance with honest practices in industrial or commercial matters and is not detrimental to, is not to take unfair advantage of or be detrimental to the distinctive character or repute of the trade mark.
Courts on Comparative Advertising
The court in Pepsi Co. Inc. v Hindustan Coca Cola Ltd. emphasized on the factors such as the intent, manner, story line of the commercial and the message sought to be conveyed. Among these factors, attention is to be given to the manner of commercial. If it is derogatory to the competitor’s product, and is trying to show them in bad light then it will be considered as disparagement and will be actionable.
In the case of Reckitt & Coleman v Kiwi T.T.K. Ltd., court laid down some principles in respect of ‘Disparaging Advertisement’. A tradesman is allowed to declare his goods to be best in the world or even better than his competitors, even though such statement is untrue. For such declaration he can compare the advantages of his goods over his competitors. What is not permissible is to defame the competitor’s good or to say that they are bad as compared to his goods. If he does so, an action would lie against him. The purpose of the advertisement should not be to injure the reputation of the defendant.
Court in Reckitt & Colman of India Ltd. v M.P. Ramchandran reiterated the settled principle that what is to be checked is that whether the advertisement is mere puffery or if in the garb of doing the same the advertiser is showing the other brands product as inferior.
In Dabur India Ltd. v Wipro Ltd. the court said that when an advertisement compares two products, it becomes important to note how the consumer perceives the product from the advertisement, if they view one product as being superior or inferior to another product. The degree of disparagement is directly related to the degree of defamation. Thus, the court in this case held that comparison is allowed as far as it is not denigrating the rival’s product.
Through all the discussion, one thing is clear that brands actively compare their products or services to that of their rival’s to gain an edge when it comes to appealing the consumers. But the thing that has to be taken care of is not to exceed the limits while comparing their product or services with the competitor’s. It takes years for any brand to build a reputation and establish trust with their consumers. It only seems fair to not let any brand tarnish a reputation which has taken so much time to be established. Therefore, if any brand tarnishes the reputation of another brand through a derogatory advertisement, it will be considered infringement and will be liable to injunction restraining such defaming advertisement.
Contributed by Nidhi Jha, Law Intern at LLL