Comparative Advertising

Comparative Advertising
Comparative advertising is a marketing strategy in which a company's product or service is presented

as superior when compared to a competitor's. A comparative advertising campaign may involve
printing a side-by-side comparison of the features of a company's products next to those of its
competitor. It may also feature a comparison based on value or cost. Typically, the competing
product is shown in a disparaging light.
Understanding Comparative Advertising
Comparative advertising may compare products or services directly or indirectly and may take either
a positive or negative tone, though negativity tends to be far more common. Comparisons may entail
a single attribute or multiple attributes.
Comparative advertising is not used solely for the promotion of a product or service. It has become a
common technique used in political advertisements, with one candidate listing how they would not
have made the same specific decisions as the incumbent if elected. This type of advertising is
popular with companies releasing new products, as the focus of the ad will be on how the new
product is better than products already on the market.
Another highly-referenced comparative advertising campaign is between competitors Coca-Cola and

Pepsi, in which advertisements will directly compare the tastes or benefits of one over the other. For
example, the now-famous Pepsi Challenge is a recurring commercial that has been aired since 1975.
In the Pepsi Challenge, PepsiCo runs taste tests on the street where consumers vote which taste they
like better. Both companies are specifically mentioned and compared.
Rules Around Comparative Advertising
In the United States, companies may not engage in comparative advertising without being able to
back up the claims that they make. They must be able to prove their assertions of better quality,
greater popularity, better value, and the like with facts, and may not engage in false statements or
imagery that disparage a competitor. Such rules were set by the Federal Trade Commission (FTC) in
1979 in its Statement of Policy Regarding Comparative Advertising, which states: "comparative
advertising is defined as advertising that compares alternative brands on objectively measurable
attributes or price, and identifies the alternative brand by name, illustration, or other distinctive
information."
Other countries have adopted definitions and rules governing comparative advertising, though each
country treats the topic somewhat differently. In the United Kingdom, any comparison that utilized a
competitor's trademark was considered infringement. In Australia, there are no laws that specifically
address comparative advertising, but there are standards based on legal precedent.
Comparative Advertising Methods
A common tactic for comparative advertising is the use of a fake product that represents a
competitor. Ad viewers will associate the fake product with a competitor's product but since there is
no precise comparison or trademark used, it satisfies FTC rules. Another tactic is the use of an ad
parody that viewers will associate with a competitor but does not reference them or their product
directly.
Sometimes, comparisons may not work as intended, as they can raise awareness among consumers
of the product the advertiser's product is competing against. In effect, it acts as free advertising —
especially if the difference between products is not significant enough in the eye of the consumer.
Statutes in play
A few decades ago, comparative advertising in the Indian market was looked down upon by
advertising companies. However, as the Indian market opened up to global products in the 1990s,
increased competition fuelled a need to glorify and compare the advantages of one’s products with
those of competitors. As a natural corollary, brand owners began resorting to hitherto unused tactics
of catching consumer attention thereby changing the landscape of advertising dynamics in the
country.
To safeguard the interests of both companies and consumers, legislative provisions were introduced
first under the Monopolies and Restrictive Trade Practices Act, 1984, that was later replaced by the
Competition Act of 2002. Currently, disparagement by advertising is governed by the Trade Marks
Act, 1999 under Sections 29(8) and 30(1), which provide for infringement of a registered trademark
by way of advertising (and list the exceptions thereto). The Code of Self-regulation issued by the
Advertising Standards Council of India as well as the Consumer Protection Act, 2019 provide
alternate remedies.
Judicial trends
Earlier judicial precedents indicated a slight tilt towards regarding plaintiffs as the affected party. The
courts were of the view that an advertisement cannot be permitted to discredit the goods of another
- as was observed in PepsiCo v Hindustan Coca-Cola [2003 SCC OnLine Del 802] by the Division Bench
of the Delhi High Court. Here the court stated that both the intention and manner of the commercial
and the message which was sought to be conveyed would be taken into consideration to decide
disparagement.
In the same context, the 1998 decision of the Calcutta High Court in Reckitt & Colman of India v MP
Ramachandran [1998 SCC OnLine Cal 422] is of enormous significance, where the court held that
“comparative advertising is permissible, however, a promoter of a product is not entitled to defame
the goods of its competitor”. It observed that:
 A tradesman is entitled to declare his goods to be best in the world, even though the
declaration is untrue;
 He can also say that his goods are better than his competitors, even though such statement
is untrue;
 For the purpose of saying that his goods are the best in the world or his goods are better
than his competitors, he can even compare the advantages of his goods over the goods of
others;
 He however, cannot, while saying that his goods are better than his competitors, say that his
competitors' goods are bad; and
 If there is no defamation to the goods or to the manufacturer of such goods no action lies.
At present, the courts not only take into account whether there has been any use of a competitor’s
trademark but also if the statements made are correct. To simplify, as long as what is being claimed is
true and correct, and can be substantiated, say by way of a survey conducted by an independent
agency, a claim can be made by a rival even if it has allegedly resulted in loss of reputation of a
competitor’s brand or product.
In the case of Havells India Ltd & Anr v Amritanshu Khaitan & Ors [2015 SCC OnLine Del 8115],
decided by the Delhi High Court, it was held that an advertiser can compare only one or more
material, relevant, verifiable and representative feature/s of the goods and services in question.
The recent case of Hindustan Unilever Limited v USV Private Limited of 2021 caught wide attention.
The plaintiff, Hindustan Unilever Limited (HUL), filed a suit against the defendant USV Private Limited
(USV) for disparagement as USV had launched an advertising campaign claiming that its SEBAMED
soap had a pH level of 5.5 and seemingly implied that soaps with a pH level higher than SEBAMED
were harmful.
USV’s advertisements displayed and orally mentioned HUL’s bathing soaps ‘Lux’, ‘Dove’ and ‘Pears’
and on the basis of the pH levels of the said soaps being higher than 5.5, insinuated their use on
one’s skin was akin to using HUL’s reputed detergent soap ’Rin’.
The Bombay High Court held that if USV removed the reference to ’Rin’, then there would be no
disparaging content, as comparison of pH level does not in itself amount to disparagement. USV was
further instructed to substitute the categorisation of soaps as ‘safe’ and ‘not safe’ on the basis of pH
value with the words ‘ideal’ and ‘not ideal’.

Comparative Advertising

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Comparative Advertising

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Comparative Advertising

Comparative advertising is a marketing strategy in which a company's product or service is presented

Understanding Comparative Advertising

Another highly-referenced comparative advertising campaign is between competitors Coca-Cola and

Rules Around Comparative Advertising

Comparative Advertising Methods

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