Rin v. Tide: Legality of comparative advertisements revisited

Well if you have seen the recent advertisement of Rin, it would definitely have raised some issues over its propriety, if not legality. In the advert, Rin has been shown to be a better product than Tide. The issue of comparative advertisements is not new. Modern commercial promotional events are replete with examples of products of rival players being compared by such players themselves. Sometimes these advertisements are banned by the Government or removed by the players themselves, but not without creating an euphoria and also creating a dent in the mind of the viewer. Given the fact that the Calcutta High Court has stayed the display of this advertisement, in this post I examine the issue of comparative advertisements their legality thereof.

It is better to start the discussion with reference to the Programing and Advertising Code adopted by the Ministry of Broadcasting and Information, Government of India. It is curious to note that while this Code carries stipulations such as that "No advertisement shall contain references which are likely to lead the public to infer that the product advertised or any of its ingredients has some special or miraculous or super-natural property or quality, which is difficult of being proved", there is no reference against comparative advertisements being displayed. So this Code doesn't through much light on the issue. 

Then, however, we have the Advertising Standards Council of India's 'Code for Self-Regulation in Advertising' which seeks to "control the content of advertisements, not to hamper the sale of products which may be found offensive, for whatever reason, by some people". However its website itself notes that 'The ASCI is not a Government body, nor does it formulate rules for the public or for the relevant industries. Rather it 'is a voluntary self-regulatory council, registered as a not-for-profit Company'. Therefore the applicability of this Code and its compliance itself is on a rather moral footing than a legally binding regime. Nonetheless one would be surprised to note that even this Code permits "Advertisements containing comparisons with other manufacturers or suppliers or with other products including those where a competitor is named ... in the interests of vigorous competition and public enlightenment", the catch being that the "advertisement does not unfairly denigrate, attack or discredit other products, advertisers or advertisements directly or by implication". Thus even this Code does not take us anywhere but for giving a subjective test of determination.

Thus it is clear that that is no bar as such on comparative advertisements under the prevailing codes of regulation or self-regulation in the advertising industry. The onus, thus, is on the courts to examine if the advertisements are to be banned, being comparative, if they seek to disparage the product of another.

A recent decision of the Delhi High Court, sheds great light on the legal position on the point. The issue before the High Court related to the issue of Dabur India that the advertisement of 'Good Knight Naturals mosquito repellant cream' disparaged its mosquito repellant cream under its brand name Odomos and Odomos Naturals. In this background, noting the relevant decisions, the High Court inter alia observed;

14. On the basis of the law laid down by the Supreme Court, the guiding principles for us should be the following:- (i) An advertisement is commercial speech and is protected by Article 19(1)(a) of the Constitution. (ii) An advertisement must not be false, misleading, unfair or deceptive. (iii) Of course, there would be some grey areas but these need not necessarily be taken as serious representations of fact but only as glorifying one’s product. To this extent, in our opinion, the protection of Article 19(1)(a) of the Constitution is available. However, if an advertisement extends beyond the grey areas and becomes a false, misleading, unfair or deceptive advertisement, it would certainly not have the benefit of any protection. ...

23. Finally, we may mention that Reckitt & Colman of India Ltd. v. M.P. Ramchandran and Anr., was referred to for the following propositions relating to comparative advertising: (a) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue. (b) He can also say that his goods are better than his competitors', even though such statement is untrue. (c) 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. (d) He however, cannot, while saying that his goods are better than his competitors', say that his competitors' goods are bad. If he says so, he really slanders the goods of his competitors. In other words, he defames his competitors and their goods, which is not permissible. (e) If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the Court is also competent to grant an order of injunction restraining repetition of such defamation.

These propositions have been accepted by learned Single Judges of this Court in several cases, but in view of the law laid down by the Supreme Court in Tata Press that false, misleading, unfair or deceptive advertising is not protected commercial speech, we are of the opinion that propositions (a) and (b) above and the first part of proposition (c) are not good law. While hyped-up advertising may be permissible, it cannot transgress the grey areas of permissible assertion, and if does so, the advertiser must have some reasonable factual basis for the assertion made. It is not possible, therefore, for anybody to make an off-the-cuff or unsubstantiated claim that his goods are the best in the world or falsely state that his goods are better than that of a rival.

Have a look at the decision (with visual illustrations recorded with the High Court). Thus it is clear that comparative advertisements which refer by name to be better that its rival product will not be seen with kind eyes by the courts of law, even though permitted by the industry codes.