Comparative Advertisements

Recently, German skincare brand Sebamed made headlines with their advertisements comparing its soap with other products in the market, like Dove, Lux and Pears and even a detergent bar, Rin by clearly naming them and comparing them in terms of their pH value. According to the advertisements, the pH level of Sebamed is ideal (i.e., 5.5), while the other body soaps had a higher pH (i.e., 7) which is equal to that of Rin and thus, harsh on sensitive skin.^[1] This is not the first time that brands have resorted to blatantly compare their products with that of their competitors. However, comparative advertisements tread on a thin line between promoting one’s own products by comparing its superior quality and disparaging their competitors’ products. The latter should be avoided by brands at all costs, as gimmicks like these can put them at risk of legal complications under the Trademarks Act, 1999.

Trademarks fulfill the functions of source identifying and quality assurance of any brand. If comparative advertisements border on disparagement, it damages the distinctiveness of the competitor’s trademark and may cause its dilution.^[2] To protect the intellectual property of trademark owners from such advertisements, Section 29(8) was included in the Act, which states that a registered trademark is infringed upon by an advertisement if such advertising^[3]—

1. takes unfair advantage of and is contrary to honest practices in industrial or commercial matters or
2. is detrimental to its distinctive character; or
3. is against the reputation of the trade mark.
4. is in accordance with honest practices in industrial or commercial matters, and
5. is not such as to take unfair advantage of or be detrimental to the distinctive character or repute of the trade mark.

It is notable that what constitutes ‘honest practices’ in any industry has not been defined under the Act, and is left to the interpretation of the Courts.

At the beginning of the pandemic, a Dettol handwash advertisement was also involved in a comparative advertising campaign where it showed a bar soap, similar to Lifebuoy soap in terms of shape and color, and stated that bar soaps are inferior in effectiveness for handwashing.^[5] The Bombay High Court held the Dettol advertisement to be disparaging the Lifebuoy Soap by indicating that a soap similar to it is ineffective in the time of a pandemic and does not remove any germs.^[6] This raises the question, what kind of comparisons are allowed under the Indian law for brands while promoting the sales of their own product?In Pepsi Co Inc. & Ors. v. Hindustan Coca Cola Ltd., the Court laid down the following tests for checking whether there is disparagement or not:

1. Intention of the commercial
2. Manner of the commercial
3. Storyline of the commercial and message sought to be conveyed by the commercial.^[7]

If any of these elements are showcased in a way that denigrates or ridicules a competitor’s product or service, then it would be held as disparagement. Another significant rule in this subject was established in Godrej Sara Lee Ltd. v Reckitt Benckiser (I) Ltd, where it was held that brands can compare their product with other products in the market in relation to its technological superiority and showing how their product is better and more efficient would not amount to undermining the competing brands in any way.^[8]

Stating true facts and substantiated claims while comparison and highlighting their product’s USP is also allowed in advertisements.^[9] Spreading false information and creating confusion through comparative advertisements to defame the manufacturers and their brand are not allowed.^[10] It is widely known that puffery or hyping of one’s own product or service through advertisement is permissible, to the extent that the advertisement while praising its own product does not unfairly criticise the competitor’s product or service.^[11]

The Advertising Standards Council of India (ASCI) also has its own Code for Self- Regulation which imposes certain conditions for comparative advertisements^[12]:

1. Advertisements should not, either directly or impliedly, denigrate or malign other products or brands.
2. The comparisons made to other brands should be backed by substantial evidence and accurate facts.
3. The comparisons should not lead to the consumers being misled.
4. The comparisons made should also show clear parameters in regards to which of the elements of the advertiser’s and the competitor’s products are being compared and on what basis.

So, what was the conclusion of the Sebamed case? It was held by the Bombay High Court that comparison on the basis of scientific facts such as the pH level are allowed by the Court. However, including a detergent bar in an advertisement comparing body soaps is impermissible and hence, has to be removed from the advertisement campaign.^[13]

Author: Soundarya Rathor, 4^th year student at School of Law, Christ (Deemed to be University), Bangalore

^[1] Nandana James. Sebamed ad targets HUL brands Lux, Dove & Pears, Businessline (January 10, 2021). https://www.thehindubusinessline.com/companies/sebamed-ad-targets-hul-brands-lux-dove-pears/article33544610.ece

^[2] Gyandeep Chaudhary, Lifebuoy v. Dettol: Decoding India’s first Comparative Advertising and Disparagement Dispute During the Pandemic, Special Issue, ILI Law Review, 288, 294 (2020).

^[3] Section 29(8), Trademarks Act 1999.

^[4] Section 30(1), Trademarks Act 1999.

^[5] Namrata Murugeshan, India’s First Covid-19 IP Dispute? Dettol Handwash Ad Climed to Disparage Lifebuoy Soap Trademark, SpicyIP (March 28, 2020), https://spicyip.com/2020/03/indias-first-covid-19-ip-dispute-dettol-handwash-ad-claimed-to-disparage-lifebuoy-soap-trademark.html

^[6] Hindustan Unilever Ltd v Reckitt Benckiser (India) Pvt Ltd, COMIPL/300/2020.

^[7] Pepsi Co Inc. & Ors. v. Hindustan Coca Cola Ltd., (2003 (27) PTC 305 Del); Annamalayar Agencies v. VVS and Sons Pvt. Ltd., 2008 (38) PTC 37 (Mad).

^[8] Godrej Sara Lee Ltd. v Reckitt Benckiser (I) Ltd, 2006 (32) PTC 307.

^[9] Havells India Ltd & anr v Amritanshu Khaitan, CS (OS) 107/2015.

^[10] Hindustan Unilever Limited v Gujarat Co-Operative Milk Marketing Federation and Others, In Notice of Motion (L) No. 690 of 2017 in Suit (L) no. 204 of 2017.

^[11] Dabur India Ltd v Colgate Palmolive India Ltd., AIR 2005 Del 102.

^[12] Chapter IV, The Code for Self-Regulation of Advertising content in India, ASCI.

^[13] Hindustan Unilever Limited and Anr. v. USV Private Limited, COMIPL/805/2021.