Basic Concept of Comparative Advertising
Advertising is certainly a crucial, fundamental, essential and vital step in determining and shaping the future of any product. It is the best and most successful and proven way to attract and invite the attention of the potential or probable consumers in the market. Meanwhile, the consumers have a wide variety or diversity of products to choose from, often the advertisers resort to a practice of associating and comparing their products from that of the competitors. While this is an acceptable and tolerable practice, several times in order to gain more pecuniary benefits, reimbursements and mileage, competitors end up using such tactics which either misleads or misinforms the customers/ consumers but also may amount to denigration of other’s product.
Comparative advertisement is an exceptional unique practice, where a manufacturer or the creator compares his goods or service from that of his competitors for the purpose of promotion and amplified sale of his goods or services.
The holder of a trademark has the exclusive right to use his trademark to identify or recognize the products or services, which is used by advertiser in comparative advertising, in order to identify and recognize the goods or services of a competitor by making and creating reference to a trade mark of the proprietor. This increases numerous concerns – on the one hand, the concern of brand owners for their goodwill being harmed or damaged and, on the other, the benefits or profits for consumers that may consequence from the reduction in information asymmetry and the stimulation of competition. As a consequence, it converts and becomes incumbent to understand the law relating to comparative advertising to better understand how it affects the several various parties – consumers, competitors, proprietary right holders and, eventually the general public.
Comparative advertising is advertising where one party advertises his goods or services by comparing them with the goods or services of another party. Such other party is frequently his competitor or the market leader of that good or service. The comparison or association is made with a view or opinion towards increasing the sales of the advertiser, either by suggesting or signifying that the advertiser’s product is of the same or an improved better quality to that of the compared product or by denigrating the quality of the compared product.
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Comparative Advertising
Comparative advertising, or combative advertising, is an advertisement in which a specific or a particular product, or service, specifically mentions and remarks a competitor by name for the express determination or purpose of showing why the competitor is inferior or lower to the product naming it. Also mentioned to as “knocking copy”, it is loosely demarcated as advertising where “the advertised brand is explicitly compared with one or more competing brands and the comparison is obvious or understandable to the audience”. An advertising war is supposed to be happening when challenging products or services exchange comparative or combative advertisements mentioning or declaring each other.
Comparative advertisement can be divided into two kinds of category, puffery and denigration. Visualize a producer making superlative claims indicating his product is best or the finest so as to encourage or influence the public into buying it. Today, if the same claim is made through degrading the image or copy of an identifiable competitive product, it crosses the limited scope of puffery leading to denigration of the product. This might not only amount to defamation of the competitor’s product, but also mislead or misinform the consumers meanwhile supreme most of the time to producers does not have an effective valid ground to claim that other product is not respectable and not good also.
Though advertisements were reflected and considered a part of form of speech but, they did not establish or constitute as ‘free speech’ since it was done merely for the purpose of commercial gain. This position was reversed in the case of Tata Press vs. Mahanagar Telephone Nigam Ltd., where the court held that advertisements is not only profiting the producers but there is a free flow of information in free market economy fulfilling the greater goal of public awareness. By benefit or virtue of this judgement, advertisements were held constitutive of ‘commercial speech’ under the territory or the ambit of Article 19(1)(a) of the Constitution of India.
Comparative Advertising is limited by Unfair Trade practices
Comparative advertising is also subject to definite certain other limitations confined in the definition of ‘unfair trade practices’. In 1984 the MRTP Act was amended to supplement and add a chapter on unfair trade practices. Section 36A of the MRTP Act lists numerous actions to be an ‘unfair trade practice’ as any unfair method or unfair or deceptive practice which contributes and gives false or misleading facts disparaging the goods, services or trade of another individual.
Concept of Disparagement
Section 36 A of the MRTP Act purports that unfair trade practices are those which lead to disparagement of the goods, services or trade of another individual. The term “disparagement” has not been well-defined in any statute, but judicial pronouncements have adopted as well as accepted its vocabulary dictionary connotation. As per The New International Webster’s’ Comprehensive Dictionary, disparagement means, to speak of slightingly, undervalue, to bring discredit or dishonour upon, the act of depreciating, derogation, a condition of low approximation or valuation, a reproach, disgrace, an unjust classing or comparison with that which is of less worth, value, and degradation. The Concise Oxford Dictionary defines disparage as under, to bring dis-crediting or reproach upon; dishonour; lower in esteem; speak on or treat slighting or vilify; undervalue, and deprecate.
In the electronic media the disparaging message is conveyed or transported to the spectator by repeatedly showing the commercial everyday thereby guaranteeing that the viewers get clear message as the supposed to be said in commercial leaves an indelible impression in their cognizance. But, it must be noted that a simple mere opinion, which is not a statement of fact, would not draw or attract Clause (x) of Section 36A (1).
Conclusion
Comparative advertising purposes or aims to objectively, accurately and truthfully enlighten as well as inform the consumer, and promotes marketplace transparency, keeping down prices and improving products by stimulating competition. Consequently, it is significant, vital and important to protect the interests of such players and competitors by not allowing comparative advertising to be the reason of any confusion, mislead, or discredit a competitor.
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