Comparative Advertising code of ethics

Comparative advertising is a widely used form of commercial advertising in many countries. This type of advertising intends to influence consumer behavior by comparing the features of the advertiser’s product with that of the competitor’s product.

Comparative claims can be different. They might name a competitor outright or just make a vague reference to him. They might focus on how the products are alike (positive comparisons) or how they are different (negative comparisons). It’s possible for them to say that their product is “better than” or “as good as” the competition’s (equivalence or parity claims). The idea behind this is to let traders compare the features of their goods in an honest (not dishonest) way with those of another trader. In order to do this, the trademarks of both sellers’ goods will have to be used. If there are no rules against this, this kind of use could be considered trademark infringement.

The term “comparative advertising” is not defined in Indian law, but it is defined in the UK Regulation as any ad that “explicitly or by implication” names a competitor or the goods or services that competitor offers.

1. In the case of Reckitt & Colman v. Kiwi TTK, the Delhi High Court summed up the law on the subject in this way:
2. It is legal for a business owner to say that his goods are the best in the world, even if that is not true.
3. He could also say that his goods are better than those of his competitor, even though that is not true.
4. There are times when he might compare the benefits of his goods to those of others in order to say that they are the best in the world or better than his competitors’ goods.

But he can’t say that his competitors’ goods are bad at the same time that he says his own are better. It’s true that he talks badly about his competitors’ goods if he says that. In other words, he talks badly about his competitors’ products, which is not okay. If there is no defamation of the goods or the company that made them, there is no cause for action. But if there is defamation, there is cause for action, and if there is cause for action for damages for defamation, the court can also issue an injunction stopping the defamation from happening again.

Laws and regulations in India:

The Trade Marks Act of 1999 and the Monopolies and Restrictive Trade Practices Act of 1984 (hereinafter “MRTP Act”) work together to set the rules for comparative advertising. The Trademarks Act of 1999 has special rules about this idea in Sections 29(8) and 30. (1). The law says that comparative advertising is legal, as long as it doesn’t lead to unfair business practises.

That’s why the Trade Marks Act was made: to balance the rights of registered trademark owners with the strong consumer interest in informative advertising. Section 29(8) of the Trade Marks Act says that advertising a registered trademark in a way that takes unfair advantage of people, goes against fair business or industrial practises, hurts the trademark’s uniqueness, or hurts its reputation is illegal.

If the use of the mark in question is in line with “honest practises” in business or industry, Section 30(1) has made it possible to get away with something that would have been illegal under Section 29.

CA has to follow “honest practises”:

Comparative advertising tries to give consumers objective and honest information. It also encourages market transparency, which keeps prices low and makes products better by increasing competition. Because of this, it is important to protect these competitors’ interests by not letting comparative advertising confuse, mislead, or hurt a competitor’s reputation.

There is no definition or explanation of what “honest practises” mean. Large groups of people agree on a core idea of what honest behaviour in business means. The courts can use this idea without much trouble and without the risk of very different interpretations.

In BMW v. Deenik, the issue at hand was whether a businessperson who was not an official BMW dealer could use the name BMW, which is a registered trademark of the BMW manufacturing company, to claim to be an expert in fixing BMW cars. It was decided by the Court that the owner of a trademark cannot stop a third party from using the mark to let people know that he maintains and fixes goods that are covered by that trademark, as long as the mark is not used in a way that makes it look like there is a business connection between the other company and the trademark owner, specifically that the reseller’s business is connected to the trad

Unfair business practises make it hard to use comparative advertising:

There are some other rules about comparative advertising that are in the definition of “unfair trade practises.” An extra chapter on unfair business practises was added to the MRTP Act in 1984. In Section 36A of the MRTP Act, some actions are defined as “unfair trade practises.” An “unfair trade practise” is any unfair method or unfair or deceptive practise that gives false or misleading information that makes fun of someone else’s goods, services, or trade.

The point of this section is to make sure that both the service provider and the customer are honest and truthful with each other. If there is a question about whether or not an action is unfair, the most important thing to do is to see if it makes a false statement or is misleading, and then think about how that false statement affects the average person.

From what has been said so far, it seems that “false representation” refers to a statement or expression that is not true or correct and is meant to persuade a consumer to buy or use a product or service, and that the public can see these kinds of ads.

The idea of disparagement:

In Section 36A of the MRTP Act, it says that unfair trade practises are those that make someone else’s goods, services, or trade look bad. The word “disparagement” is not defined in any law, but courts have used the dictionary definition of the word. As defined by The New International Webster’s’ Comprehensive Dictionary, disparagement is to insult, undervalue, bring shame or discredit upon, degrade, the act of lowering in value or estimation, a reproach, a shame, an unfair comparison or grouping with something less valuable, and degradation. The Concise Oxford Dictionary says that to disparage someone is to dishonour them, lower their status, speak badly about them, call them names, undervalue them, or deprecate them.

In electronic media, the negative message is sent to viewers by showing the commercial over and over again every day. This makes sure that viewers get the message clearly because the commercial leaves a lasting impression on their minds. There is one thing that should be made clear, though: Clause (x) of Section 36A would not apply to an opinion that is not a statement of fact (1).

In the case of New Pepsodent v. Colgate, HLL advertised its toothpaste as “102 percent better than the leading toothpaste.” In the TV ad, saliva samples are taken from two boys. One has brushed his teeth with the new Pepsodent, and the other has brushed his teeth with “a leading toothpaste.” There are more germs in the saliva of people who use “the leading toothpaste.” As the boys were giving their samples, they were asked what brand of toothpaste they had used the day before. One boy said Pepsi, and the other boy’s answer was hard to hear. But the second boy’s lip movement showed that he was saying “Colgate.” Also, after the muting was done, there was the sound of the jingle that was used in the Colgate ad. The Commission said that over the years, the word “toothpaste” had come to mean Colgate, and that a reference to “leading brand” meant Colgate. So, it was a case of comparative advertising that made Colgate’s products look bad..