Comparative Advertisements : A Chronicle

On January 25, 2011 in General

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As Nicholas Johnson rightly quoted “It used to be that people needed products to survive. Now products need people to survive.” With so many companies in India, the competition among them has become tough. Each one is trying to woo the consumers through advertisements. Each one is trying to outdo the other. In the process they have started comparing each others’ products. Gone are the days when advertisements used to be simple, understated and conveyed the message effectively. The captions like “Vicks ki goli lo, kich kich door karo”, “Hamara Bajaj”, “lifebuoy hai jahan tandroosti hai wahan”, the jingle of Zandu Balm^TM etc. created strong impressions in the people’s mind and increased the sales of the product.

Comparative advertising is advertising where one party advertises its products by comparing them with the competitor. Typically the advertiser claims that his product is superior in quality over the competitor. The comparisons may be done on various criteria, health drinks compare the nutrients contained in each other’s products, soft drinks compare the tastes, mobile phone companies compare each other’s tariffs, and car manufacturers challenge the effectiveness of each other’s products. Initially the television commercials only extolled the advertiser’s product and the compared brand could not be guessed easily. The comparisons were indirect and nowhere was anything explicitly stated that the competitive product was of inferior quality. Over a period of time, though, the comparisons started becoming more open. Recall a commercial of Thums up^® where a lead actor asks a teenager to choose between two cola drinks. Though muted, it could be made out that the boy utters Pepsi^®. The actor shrugs that kids are more likely to opt for the ‘other’ brand as it is sweeter whereas Thums up was preferred by adults as it was stronger. Then he goes on to say “Dil Maange More? Aha!” attacking the Pepsi ad line. A recent ad of Nestle^® Munch came up with an ad saying “Khao bina tareeq dekhe” meaning enjoy Munch without looking at the calendar as it is cheaper, directly challenging the Cadbury’s^® ad which said “meetha hai khana aaj pehli tareeq hai” which urged people to have Cadbury chocolates on first of every month.

A more recent commercial of Rin, product of Hindustan Unilever^®(HUL) vs Tide Naturals, product of P&G^® shows two women, the first one praises Tide with a Tide Naturals packet, shown prominently. A school bus stops and the first woman’s son steps out. His shirt is dull. Then another boy, the second woman’s son, alights and his shirt is sparkling white. He goes towards his mother, who uses Rin, and asks “aunty chaunk kyon gayi?” attacking the Tide caption “Chaunk Gaye!”. Moreover two shirts, a dull one with Tide Naturals Packet and brighter one with Rin Packet are also depicted. P&G went to the court against HUL. There are some cases like this which are caught in the advertising hassles like Horlicks vs Complan, Colgate vs Pepsodent, Maruti^® vs Hyundai^®, Mr.Muscle^TMvs Cif^TM etc.

According to the Monopolies and Restrictive Trade Practices (MRTP Act) and the Trade Marks Act, 1999 Comparative Advertising is allowed with certain limitations to “unfair trade practices”. Section 36A of the MRTP Act defines “unfair trade practices” as any unfair method or unfair or deceptive practice which gives false or misleading facts disparaging the goods, services or trade of another person. The law lays down that a tradesman can call his goods the best. Secondly he can say that his goods are better than the competitors’ goods. Thirdly he can be compare the advantages of his goods over others. Fourthly, he should not defame or disparage the competitor’s products. Finally if there is defamation then recovery of damages and injunctions are the remedies available to the victim.

Advertisement Standard Council of India (ASCI), a body set up by industrialists for self-regulation in advertising, has its own code for advertising. Advertising companies have to adhere to ASCI rules. ASCI rules state that comparison to the rival brand has to be backed by factual information and tested results and secondly in no event should the consumers be deceived due to comparison. Thirdly competitors’ products cannot be degraded explicitly or implicitly. ASCI rules applies to advertisers, advertising agencies and advertisements created abroad but used in India.

In the above example of Rin vs Tide case, P&G^® filed a suit of disparagement against HUL^®. HUL^® claimed that Rin is superior to Tide and the results were based on laboratory tests done independently in third party laboratories in compliance with globally accepted protocols. ASCI said that it has issued a notice to HUL^® to substantiate its claim. However the Calcutta High Court said that the voice over said Tide but what was shown was a packet of Tide Naturals. The Court felt that Rin commercial was disparaging Tide and said “Even if the dull shirt with the Tide packet is removed without the removal of the voice over “Tide se kahi behtar safedi de Rin” the advertisement visually will have a negative impact vis-a-vis the dull shirt which can be associated only with the Tide lady’s child who is shown approaching his mother and not the Rin boy or his mother. Therefore, the connection between the Tide lady and the dull shirt child is evident.” The Court also pointed out that the comparison list of the two detergents were not shown in the advertisement. Hence it passed an interim injunction restraining HUL from claiming that its Rin detergent gave more whiteness than Tide Naturals.

Laws on comparative advertising differ with different countries. The United States of America has a very liberal view of comparative advertising. It is well established, recognized and enjoys additional protection of freedom of speech laws. The UK also permits comparative advertising under Section 10(6) of the Trade Marks Act (1938). In Philippines specific product comparisons are prohibited, in Switzerland and Malaysia there are strict rules that have to be followed while comparing the products. In countries like China, Argentina, South Africa, Japan etc. there are strong restrictions against comparative advertising.

Though the advertisements may seem a little brash nowadays, comparative advertising is a legal tool and if this provision is used properly it can be really effective.

References

http://youthonads.com/comparitive-advertising-%E2%80%93-a-cover-for-ad-wars/

http://www.financialexpress.com/news/comparative-advertising-in-india-need-to-strengthen-regulations/143918/4

http://www.expressindia.com/fe/daily/20010224/fec24073.html

www.spicyipindia.blogspot.com

http://www.legalserviceindia.com/article/l275-The-Code-For-Self—Regulation-In-Advertising.html