The success of a product in the future is significantly influenced by its advertising. It is well known in the market that it is the most successful and tried approach of luring new clients. Advertisers typically contrast their goods with those of rivals because there are so many products offered to consumers. Comparative advertising, as used in everyday speech, refers to the promotion of a specific good or service by contrasting it with one made by a rival in order to demonstrate why one’s own product is superior. Market participants use comparative advertising to convince customers that their service or product is superior and more sought-after. Certain market players, in an effort to increase their share of the market and draw consumers’ attention to their brand, go to greater lengths in their comparative advertising of their product or service by providing information that is deceptive, misleading, or demeaning of their competitor’s product or service. In some instances, they even violate registered trademarks in order to create the impression of a well-known brand.
PRODUCT DISPARGEMENT
To connect unequally, to dishonour (something or someone) by comparison, to unjustly discredit or detract from the reputation of (another’s property, product, or business), or to make a false and harmful statement that discredits or detracts from the reputation of another’s property, product, or business are all definitions of disparage in Black’s Law Dictionary. According to what is implied, “disparagement” is defined as a false or harmful comment that damages the reputation of another’s property, product, or business. The justification for comparative advertising is frequently based on the claim that since advertising is considered commercial speech, it is protected under Article 19(1)(a) of the Constitution. It would be a stretch to claim that an advertiser has the freedom to trash the product of its competitor without any restraint, under the guise of freedom of speech. Freedom of speech and expression does not, however, authorize defamation. Although it is one thing to claim that your product is superior to a competitor’s product and quite another to claim that his product is inferior to yours, the irony still exists that while stating the latter, the hidden message may be the former, but that is inescapable in this situation. Comparative advertising is not the only way to denigrate a product. Even a third party’s action, such as a newspaper article that critiques a specific product while also disparaging it, could be considered product disparagement.
ESSENTIALS TO CLAIM THE PRODUCT DISPARAGEMENT
The Hon’ble court in many landmark cases have come up with the following guidelines which are essential to prove the claim in product disparagement cases; same are as follows- ·The accusation levelled in this manner against a company is false and does not reflect reality. · The statement is made with the intention of harming or causing financial loss. · The made statement has actually resulted in a loss. · The competitor has either made the statement negligently or with the knowledge that it will harm the business.
Dabur India Ltd. v/s. Colgate Palmolive India Limited
Plaintiff:
Dabur India Ltd. is a manufacturer of a wide variety of pharmaceuticals, personal care items, and medicinal preparations, including Ayurvedic medicines and formulations, which it sells under the registered trademark “Dabur.” Dabur Lal Dant Manjan Powder is made here. Defendant:
The manufacturer of the “Colgate” brand of white toothpaste is Colgate Palmolive India.
Facts of Comparative Advertisement: In this instance, Colgate promoted a visual media advertisement in which actor Sunil Shetty explained the negative effects of lal dant manjanby rubbing it on a pair of glasses to discourage customers from purchasing the tooth powder, which was similar to Dabur. The process of rubbing left marks on the glasses that were compared to sandpapering. In addition, Colgate advertised that their toothpowder did not harm teeth and was 16 times less abrasive. As a result, Colgate tarnished the products and received an injunction from the Court.
Plaintiff Complaint
Because Dabur was the primary producer of Ayurvedic tooth powder and held a share of 80% in the market, the plaintiff would be most affected by the denigration of the generic product Lal Dant Manjan, and he is entitled to voice his grievances.
Defendant Arguments: The commercial does not mention the plaintiff’s goods, and the defendant is free to criticize the competitor’s product while praising its own while doing so.
Verdict of the Court: The judge cited Dabur India Ltd. v. Emami Ltd., but did not address the question of whether the product mentioned in the advertisement belonged to the plaintiff; “The plaintiff is certainly entitled to complain as it is one of the largest producers of such tooth powder,” 2004 (29) PTC 1 (Del) ruling stated. The Appointed authority further held “It was looked to be battled that guileful against all are admissible however the equivalent may not be passable against one specific person. I refuse to accept the same for the simple reason that when it was stated that everyone is bad, it meant that everyone and everything is bad, affecting those who denigrate everyone…I am also of the opinion that general criticism of a competitor’s product without specifically naming or pointing to the competitor is equally objectionable.
Indeed, clever advertising can target a competitor’s product without specifically mentioning it. No one can use the defense that the plaintiff has not been specifically identified to disparage a product category or genre in which a complaining plaintiff falls. As a result, the defendant was prohibited from airing the “Colgate Tooth Powder” television commercial.
CURRENT ISSUE OF INTERCONTINENTAL BRANDS & PARLE PRODUCTS
In the present case Parle Products Pvt. has been accused of infringing on Intercontinental Great Brands’ trademark for the OREO brand of biscuits. Ltd., claiming that Parle is marketing its assortment of vanilla cream-filled chocolate biscuits under the brand name “FAB!O,” which appears to be confusingly similar to the OREO mark. Additionally, the plaintiff claims that Parle manufactures and sells the “Fab!O” biscuits that are included in the package with deceptively similar trade names.
Intercontinental Great Brands claims that Parle is only using the FAB!O mark for cream-filled chocolate sandwich biscuits that are identical to the biscuits that the plaintiff manufactures and sells under the OREO trademark. Parle continues to use the FAB! for all other biscuits. mark, it averred,” the suit read.
The defendant, Parle, pleaded that the plaintiff, Intercontinental Great Brands, uses the same trademark for its OREO cookies. Parle relied on images of biscuits sold by other manufacturers in packaging with similar colors and characteristics.
The court stated that the argument based on the dissimilarity between the first syllables of “FABIO” and “OREO” cannot be accepted because there are binding judicial precedents that have held that marks are phonetically similar and, as a result, likely to confuse or deceive, even when their first syllables are different. This means that the marks are likely to confuse or deceive.
The court ruled that the differences between the two packagings aren’t enough to convince a customer with average intelligence and poor memory that the biscuits are made by two different companies in relation to similar trade dresses.
The bench stated, “Commonality to the trade, statutorily, is not a defense against infringement, though curtails the plaintiff’s right,” in response to Parle’s arguments. According to the Trade Marks Act’s Section 17(2)(b), no part of a trademark that is common to the trade can be claimed to be exclusive. Hence the Hon’ble court granted the interim injunction against the Parle from using FAB!O.
CONCLUSION
With the advancement of technology and current globalization, it becomes very obvious that every player in the market wants to maximize their profits. When done well, advertising has the capacity to change how consumers view a good or service. Having an advantage over the competition, however, becomes crucial given the intense competition in the sector.
Businesses now operate across numerous jurisdictions as a result of globalization. Accordingly, “If done honestly and truthfully, comparative advertising is the only way to do this.” Therefore, it is even more crucial to use a rival’s brand ethically and in accordance with industry norms.
Advertisers must exercise caution to avoid overstating the value of their goods or services without offering evidence to support their claims.
Analysing the legal system, the court proceedings in a number of significant cases, and the laws governing comparative advertising in India, it is clear that the absence of a specific legislative framework to control the practise has resulted in the adoption of a framework that is largely haphazard, with different aspects of the practise based on contradictory standards.