Comparative advertising is a form of advertising or trade practice where one party advertises his goods or services by comparing them with the goods or services of another party, where another party is usually a competitor or the market leader of that good or service. The entire endeavor is made with a view to increasing the sales of the advertiser, either by exhibiting that the advertiser’s product is of the same or better quality to that of the compared product.
A girl in a restaurant jeeringly asks a middle-aged businessman sitting in a restaurant beside her- “Aapke pass Nahi hai, Uncle?” because the man seems to have a less advanced mobile phone than her. One of her friends asks for her phone and criticizes its features, thereby calling her as “Aunty”. We are shown two models of a Micromax phone along with their respective features and a tagline-‘Now that you have a phone with such features, so why Y?’
It seems a regular advertisement, but there is something wrong here. The tagline of the Micromax advertisement takes a dig at Samsung’s GalaxyY mobile phones. The advertisement had been intentionally styled as a sequel to GalaxyY television commercial with the plot, theme, and script similar to the spoof.
Comparative advertisements may be roughly divided into the following categories:
- Advertisement asserting that their product has an edge over others, without referring to any particular competing product;
- The Advertisements asserting their better quality with respect to a particular class or categories of products or services in the market;
- Advertisements juxtaposing measurable features of two competing products;
- All the advertisements enumerating the deficiencies of a competitive product through information provided in their advertisements;
- The advertisements referring to the competitor’s product with a blurred trademark; and
- Advertisements openly claiming that they are better than any single product/competitor.
The relationship between Comparative advertising and Consumer Protection Laws is not alien. Although the Consumer Protection Act, 2002 does not directly discuss comparative advertising, it has provisions related to Unfair Trade Practices under Section 2(1)(r) which acts as a watchdog for unhealthy comparative advertising. The provision says-
“Unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, 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.”
The above illustration is an example of unfair trade practice.
Comparative Advertising vis-à-vis Consumer Awareness
Comparative advertising if done in a proper and fairway can be a boon to consumers. Ideally, it should provide necessary details, draw a rational analysis and make a proper comparison with the competitor’s product. In Tata Press Limited v. Mahanagar Telephone-Nigam, the Hon’ble Supreme Court has perspicuously streamlined the guidelines for valid comparative advertising:
- Comparative advertising must compare products with similar utility or intended for a similar purpose.
- Comparative advertising should explicitly or implicitly make clear the parameters on which the comparison is made.
- A case of ‘disparagement‘ arises only if the product in question is identifiable in the advertisement or commercial, which also includes an identifiable indirect reference. Comparison with another product that does not allude to a particular brand, cannot give rise to
- Comparative advertising should not mislead consumers about the competitor‘s products while drawing a comparative analysis.
- A manufacturer is entitled to make exaggerations with respect to the quality of his goods, or in puffing, manner compare his goods with competitors‘, and the same even if untrue, will not give a cause of action to other manufacturers of similar product unless in doing so the manufacturer says that his competitor‘s goods are bad, or disparages and defames them.
After the liberalization and globalization of Indian economy, the rat race among different brands and services to survive and keep themselves stable in the market has increased manifold. This has created a state of perplexity for the Indian consumers, who find it tedious to decide what fits their needs the best amongst a variety of choices. Comparative advertising, in some way or the other, fosters healthy competition in the market. If a brand is subdued by its rival, and the same is being done by providing the requisite scientific evidence which proves the inferiority of the rival brand, it will give a wakeup call to the rival brand.
The fear of being exposed and being subjected to the surveillance of media and authorities ensure that rival brands are kept on their toes which ultimately leads to the consumer getting the best goods and services at the best prices. Comparative advertising thus makes the consumer quality-conscious if the advertiser takes on his rivals on the quality front.
Effective advertising can change the way the world sees a product or a service in all aspects. If done honestly, there is no better way to achieve an ideal market or trade structure than comparative advertising.
 1995 AIR 2438.
 Disparagement takes place when a negative statement is made against an individual’s title to his property for business or his property with the intention to discourage others from dealing with the person or his business.