Abstract:
This paper is a study of understanding Comparative Advertisement and Trademark, delving into a deeper level of knowledge through the lens of India and its statutory laws. The paper aims to explain Comparative Advertisement and its role in trademarks. Comparative Advertisement is used as a strategy to garner attention of consumers. Today’ world is driven by technology, immense business developments and a competitive market wherein comparative advertisement plays a crucial role. Comparative Advertisement is permitted as long as it adheres to the legal guidelines in India. Judicial Analysis of comparative advertisements over the years by Indian courts have led to some interpretations and guidelines that must be adhered to.
Key Words:
Comparative Advertisement- Trademarks- Disparagement- Trademarks Act, 1999
Introduction:
Intellectual Property Rights is that field of law which emphasizes and protects creations of one’s mind and labour. In today’s world, Trademarks has gained significant importance not just in the world of Intellectual Property Rights but also Businesses, Start-Ups.
Businesses go hand in hand with consumers and without consumers there would be no business. Businesses exist and have been known through their trademarks. It is trademarks that helps to identify a particular business. Trademarks are usually registered by businesses as per different legislation in different parts of the world to protect their identity and reputation. Trademark means a mark which is capable of being represented graphically and which is capable of distinguishing the goods and services of one person from those of others and include shape of goods, their packaging and the combination of colors.[1]
In the era of globalization and a world full of innovations and technology, advertisement is an essential tool for success. The commercial world is full of competition which further leads to competition amongst businesses in pursuit to attract more consumers and customers.
Advertising involves branding and marketing of products and services. A market that is full of competition has led to businesses understanding the importance of comparison and use of comparative advertisement.
“Comparative advertising is a technique ofadvertising which contains displayed pictorial,audio or printed material, which has the effect ofmaking a direct or indirect comparison betweenproduct or services of identified competitorsor non-competitors as to the price, qualities,attributes or characteristics of these products orservices.”[2]
In simple terms, comparative advertisement is comparing one’s product to another’s with reference to value, price, quality, features, etc. It is supposed to offer an honest comparison of the competing products emphasizing on positive qualities rather than the negatives. The issue arises while comparing when the product of another is shown in a poor light to cause negative view in the minds of consumers. The whole objective of such a marketing and branding strategy is to attract and influence consumers.
There is no definition of Comparative Advertisement in the Indian Statute but UK Regulations define Comparative Advertisement as any advertisement which “explicitly or by implication, identifies a competitor or services offered by a competitor.[3]
Comparative Advertisement can benefit the consumers in many ways such as providing information with regard to price, quality, value; help the consumers to be more informed with regard to products and to evaluate the brands.
Comparative Advertisement is of different types and these are as follows:
- Non-Comparative Advertisement- there is no mention or reference to the rival product and the business only focuses on advertising their own product.
- Indirectly Comparative Advertisement- in such type od advertising, one’s own product is mentioned but there is indirect comparison to competing products.
- Directly Comparative Advertisement- in such advertisements, comparison is drawn between one’s product and the competing product wherein the competing product is shown to be inferior.
Comparative Advertisement is to be different from Product Disparagement.
Black’s Law Dictionary defines“disparagement as to connect unequally; or todishonour (something or someone) by comparison;or to unjustly discredit or detract from the reputationof (another’s property, product, or business); ora false and injurious statement that discreditsor detracts from the reputation of another’sproperty, product, or business.”[4]
Disparagement refers to denigrate rival products that eventually causes damage to the rival’s reputation. Disparagement is comparison in an unequal manner. To differentiate between comparative advertising and product disparagement, following should be considered:
- When there is a false or misleading statement of fact that may be made about a product.
- If the Statement has deceived, or may mislead or deceive a substantial portion of possible consumers of the product so disparaged.
- If such statement can affect the decision(s) of a consumer with regard to purchase.
If all three are found to be true, then an action against the transgressor will surely lie.[5]
Puffery is another common term to comparative advertisement wherein the claims made about one’s own product are not misleading though an exaggerated praise for the same.
[1] Section 2(z)(b) of Trademarks Act of India 1999.
[2] De Jager and Smith, Advertising and the Law 67 (Butterworths 1995).
[3] EU Directive 97/55/EC.
[4] Garner Bryan, A Black’s Law Dictionary, (West Group, Minnesota, 7th Edn. 1999).
[5] Uphar Shukla, Comparative Advertising and Product Disparagement vis-à-vis Trademark Law, 11, 409 411-12 (2006).