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Comparative Advertising

Competitive advertising attempts to stimulate demand for a specific brand by promoting the brands features ,uses, and advantages, sometimes through indirect or direct comparisons with competing brands. To make direct product comparisons, marketers use a form of competitive advertising called comparative advertising, which compares two or more brands on the basis of one or more product charactristics . Competitive advertising points out special features ,uses and advantages relative to competing brands. Comparative advertising compares two or more brands on the basis of one or more product characteristics. Comparative advertising can be classified according to whether it is direct or indirect. In direct comparative ads the competing products either are explicitly named or can be precisely identified (by photos, images or trademarks). Examples are- In 1991 MasterCard launched a campaign that used funny 30-second commercials to depict frenzied American Express Card holders rushing madly around unsuccessfully trying to find an ATM that would take their card (Leighton 2004). A 1999 General Motors Corp. ad claimed that the Cadillac Seville STS outperforms BMW 540 in a slalom race. By contrast, indirect comparative ads do not directly refer to competing brand names. The Avis We try harder campaign launched in the US in 1962 is perhaps the most famous example.

Advantages of Comparative Advertising

The message and the brand are better kept in mind. Detailed and explicit information reduces confusion. Improves the products perception. The buying intentions increase. It promotes competition.

Legal Provisions

The Trade Marks Act, 1999 Section 29(8) of Trademarks Act, 1999 Section 30 (1) of Trademarks Act, 1999 Section 36 A (1) (x) of MRTP Act

Trademarks Act, 1999

The Trade Marks Act, 1999 permits comparative advertising by means of using another's trademark, however in that process the advertiser doing so cannot disparage the goods or services of another. Any such act disparaging the goods or services of another shall not only be an act constituting infringement of trademark, but also shall constitute product disparagement which covers the domain of unfair trade practices.

Section 29(8) of Trademarks Act, 1999

A registered trade mark is infringed by any advertising of the trade mark, if such advertising: (a) takes unfair advantage of and is contrary to honest practices in industrial or commercial matters or is detrimental to its distinctive character or is against the reputation of the trade mark.

(b) (c)

Section 30 (1) of Trademarks Act, 1999

Nothing in section 29 shall be construed as preventing the use of a registered trade mark by any person for the purpose of identifying goods or services as those of the proprietor provided the use a) is in accordance with honest practices in industrial or commercial matters. And b) is not such as to take unfair advantage of or be detrimental to the distinctive character or repute of the trade mark.

Section 36 A (1) (x) of MRTP Act

Unfair trade practice means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provisions of any services, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely :(1) the practice of making any statement, whether orally or in writing or by visible representation which (x) gives false or misleading facts disparaging the goods, services or trade of another person

Advertising Standards Council of India, has specified the following norms comparative advertising in its Code of Conduct: 1. Advertisements containing comparisons with other manufacturers or suppliers or with other products including those where a competitor is named, are permissible in the interests of vigorous competition and public enlightenment, provided: (a) It is clear what aspects of the advertisers product are being compared with what aspects of the competitors product. (b) The subject matter of comparison is not chosen in such a way as to confer an artificial advantage upon the advertiser or so as to suggest that a better bargain is offered than is truly the case.-6(c) The comparisons are factual, accurate and capable of substantiation.

(d) There is no likelihood of the consumer being misled as a result of the comparison, whether about the product advertised or that with which it is compared. (e) The advertisement does not unfairly denigrate, attack or discredit other products, advertisers or advertisements directly or by implication. 2. Advertisements shall not make unjustifiable use of the name or initials of any other firm, company or institution, nor take unfair advantage of the goodwill attached to the trade mark or symbol of another firm or its product or the goodwill acquired by its advertising campaign. 3. Advertisements shall not be similar to any other advertisers earlier run advertisements in general layout, copy, slogans, visual presentations, music or sound effects, so as to suggest plagiarism. 4. As regards matters covered by sections 2 and 3 above, complaints of plagiarism of advertisements released earlier abroad will lie outside the scope of this Code except in the under-mentioned circumstances: (a) The complaint is lodged within 12 months of the first general circulation of the advertisements/campaign complained against. (b) The complainant provides substantiation regarding the claim of prior invention/usage abroad.

Types of Comparitive Advertising

Comparative advertising can be classified as Direct Comparitive Advertising Indirect Comparitive Advertising

Direct Comparitive advertising

In direct comparative advertisements the competing products either are explicitly named or can be precisely identified (by photos, images or trademarks). In direct comparative advertisements, commercials will specify a competing brand or product by name and allege that brand or product being promoted is in some way superior. This most frequently occurs when an industry is dominated by two primary competitors.

Case 1: Colgate vs Pepsodent Company: Colgate Palmolive (India) Product: Pepsodent GermiCheck Superior Power Complaint: Colgate Palmolive (India) Ltd. brought an action against HUL for its ads relating to its product Pepsodent GermiCheck Superior Power as these ads allegedly disparaged Colgates toothpaste Colgate Dental Cream Strong Teeth. Decision: The court first examined the law concerning comparative advertisements. The court said that: A false statement was made which is calculated to cause financial damage, That it was made maliciously with an intention to cause injury and The impugned statement has resulted in a special damage.

The court denied going into the questions of truthfulness of the 130% germ attack capability of Pepsodent GSP and the allegation of HUL being in the habit of making misleading claims, at the stage of interim injunction. Case 2: Rin vs Tide Company: Proctor & Gamble Product: Tide Complaint: Petition filed by rival Procter and Gamble (P&G), the maker of the detergent Tide, on HULs Rin Detergent.P&G has filed a case in the Calcutta High Court against Hindustan Unilever's new ad campaign, which openly claims the superiority of its product Rin over P&G's Tide. Decision: Advertisement Standard Council of India (ASCI) has said it has issued a notice to FMCG major HUL asking it to substantiate its claim in two weeks about the TV commercial that its washing powder Rin is better than rival P&G's Tide. HUL would not mind withdrawing the ad, as it had already had a run for over a week and its purpose had been served. P&G won the case and HUL had to withdraw its advertisement.