The High Court of Delhi recently dealt with a case of comparative advertisement, yet again. The only thing that set this case apart from the recent comparative advertisement cases is the fact that the plaintiff was upset that the defendant did not mention certain advantages of their products. Now does that really amount to disparagement of the plaintiff’s product?
Facts and arguments:
The defendants have compared their product “Eveready LED Bulb‟ with the plaintiffs‟ product “Havells LED Bulb‟. The counsel for the plaintiffs argued that the impugned advertisement was a comparison of two products using selective and mischievous means to compare wherein the statement used by the defendants, “check lumens and price before you buy”, would mislead the consumers to compare only two attributes of a bulb, i.e. lumens and price. The fundamental argument of the plaintiff was that all the relevant parameters of the products must be compared in order to convey the whole truth to the consumers reading/watching it.
On the other hand, the counsel for the defendants argued that the comparative representations made in the impugned advertisement were derived from the product packaging of all companies mentioned in the said advertisement. He went on to contend that there was no requirement in law to disclose each and every factor in comparative advertisement. The counsel relied on one of the Dabur cases dealing with comparative advertisement and stated that glorifying one’s product was permissible provided the rival’s product was not denigrated.
Analysis by the Court:
Before giving the judgment, the Court dealt with various aspects of advertisement and comparative advertisement;
-
Comparative advertisement – what is it?
The Judge relied on Article 2(2a) of the Advertising Directive of EEC which defines comparative advertising as “any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor.”
-
Comparative advertisement – Legal and permissible?
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.
-
Is it a dishonest act to failure to point out a competitor’s advantages is not necessarily dishonest;
The Court held that there is no rule which requires that all the features of a product have to be necessarily compared in an advertisement. The learned Judge went on to say that the only reason why the counsel for plaintiffs was insistent upon comparing all the relevant parameters was because the defendants had compared the prices of the two products. This just goes to show that the counsel for the plaintiffs conceded to the fact that it is not a requirement of the law to compare all the aspects of two products.
-
Misleading advertising;
The Court held that for an advertisement to be misleading, two essential elements must be satisfied;
First, misleading advertising must deceive the persons to whom it is addressed or at least, must have the potential to deceive them. Secondly, as a consequence of its deceptive nature, misleading advertising must be likely to affect the economic behaviour of the public to whom it is addressed, or harm a competitor of the advertiser. Based on these elements, the Court held that the impugned advertisement was not misleading in the present case.
- The Judge held that objective of Sections 29(8) and 30(1) of the Trademarks Act, 1999, is to allow honest comparative advertising. Section 29(8) basically states that a registered trade mark is infringed by any advertising of that trade mark if such advertising (a) takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or (b) is detrimental to its distinctive character; or (c) is against the reputation of the trade mark. Section 30 (1) states that it is not infringement if it is in accordance with honest practices in industrial or commercial matters. Based on these provisions, the Court held that the impugned advertisement does not amount to trademark infringement.
Decision
The Court based on the facts of the case held that there is no requirement in law to disclose each and every factor/characteristic in comparative advertisement as no reasonable observer would expect one trader to point to all the advantages of its competitor’s business. The Court also held that mere trade puffery, even if uncomfortable to the registered proprietor, does not bring the advertising within the scope of trade mark infringement.
This judgment touches those aspects of comparative advertising which has not been dealt with in the recent times. Just because your competitor does not mention the advantages of your products does not necessarily mean that his advertisement is dishonest. Wait a minute, why would your competitor highlight the advantages of your product? Isn’t he supposed to do exactly the opposite of that?
This article has been authored by Durga Bhatt, an IP Law practitioner.
