Introduction:
In a recent judgment, the Delhi High Court shed light on the legal aspects of comparative advertising and its permissible limits. The case involved a dispute between Reckitt Benckiser Pvt Ltd., the manufacturer of Dettol, and Wipro Enterprises Private Ltd., the advertiser of Santoor handwash. The court’s ruling provides valuable insights into the world of comparative advertising and the factors considered when evaluating such claims. Let’s delve into the key takeaways from this judgment.
Comparative Advertising and its Protection:
Comparative advertising, which involves directly or indirectly comparing one product or brand with another, enjoys protection as commercial speech under Article 19(1)(a). However, this protection is subject to certain limits, as discussed in the judgment.
Permissible Extolling of Positive Features:
The court emphasized that extolling the virtues of a product, such as highlighting its natural ingredients or unique characteristics absent in rival products, is permissible and does not constitute disparagement.
Puffery and Claiming Superiority:
Advertisers are allowed to engage in puffery, which entails claiming superiority over rival goods. However, they must refrain from making false or incorrect representations about the quality and character of their competitors’ products.
Market Dominance is not Disparagement:
Merely targeting a product with a significant market share does not automatically make an advertisement disparaging. The court made it clear that market dominance alone cannot be the basis for a claim of disparagement.
Evaluating the Advertisement from a Viewer’s Perspective:
The court stressed that an advertisement should be evaluated from the perspective of a sensible and right-thinking member of the general public. Such a viewer can read between the lines, consider implications, and choose non-derogatory interpretations.
Considering the Overall Effect of the Advertisement:
When assessing whether a commercial is disparaging, the court examines the intent, manner, storyline, and message conveyed. The advertisement should be viewed as a whole and not analyzed frame by frame. The overall effect, whether it promotes the advertised product or disparages the rival product, is of utmost importance.
Conclusion:
The recent Delhi High Court judgment on comparative advertising provides valuable guidance for advertisers and manufacturers alike. It reinforces the protection of commercial speech under Article 19(1)(a) while setting limits on permissible assertions. Advertisers must remember that extolling positive features, engaging in puffery, and comparing products are allowed, as long as they do not involve false representation or disparagement. By viewing advertisements from the perspective of a sensible viewer and considering their overall effect, courts can make informed decisions regarding claims of disparagement.
As legal professionals, it is crucial to stay updated with such judgments to provide effective counsel and guidance to clients involved in comparative advertising disputes. Understanding the legal position can help navigate the fine line between promoting a product’s merits and potentially infringing on competitors’ rights.