The Delhi High Court recently observed that comparative advertising includes the right to show the competitor product, but denigration or insulting the rival’s product is prohibited.
“While it is permissible to state that the advertised product is superior to the competitor’s, it is not permissible to attribute this superiority to some flaw or flaws in the competitor’s product. A competitor’s goods cannot be described as poor, unwanted, or inferior in an advertisement. The subtle distinction between claiming one’s goods are superior to others’ and the other’s goods are inferior to one’s must be remembered,” Justice C Hari Shankar stated.
The court made the remarks while declining to injunct the broadcasting of a Wipro Enterprises Private Limited advertising for its product Santoor handwash, which Reckitt Benckiser Private Limited alleged disparaged its product Dettol handwash.
The court denied Reckitt Benckiser’s plea seeking an ad interim injunction against Wipro, stating that the contested advertising does not disparage Dettol or any other hand wash.
“Within the bounds of permissible assertions, comparative advertising is protected as commercial speech under Article 19(1)(a). A certain amount of disparagement is implicit in comparative advertising,” the court stated.
The court emphasised that an advertisement must be viewed as a whole, not frame by frame, and that an advertiser may make an unfavourable comparison while promoting a product, but this may not necessarily affect the story line or message or have an unfavourable comparison as its overall effect.
“The advertisement was to be viewed as a normal viewer would, rather than with the intent of catching disparagement. Words used in advertisements are intended to be understood in their natural, general, and usual sense, as well as according to common understanding,” Justice Shankar stated.
The court further added that encouraging the public to use the advertised product instead of others is legal as long as there is no message that disparages or denigrates the competing product.
“The reasonable and right-thinking viewer, if he wishes to try Santoor in place of Dettol or any other hand wash that he was previously using, would do so not because the impugned advertisement disparages other hand washes as lacking in moisturizing or softening capabilities, but because Santoor contains sandal, and sandal moisturizes. The difference between these two impressions is vast. The first is disparaging, but the second is not. The contested advertisement, in my opinion, is on this side of the Lakshman Rekha, not that,” the Court stated.
