The key to comparative advertising lies in the depiction of the rival goods in a discreet yet assertive fashion. India does not have in place dedicated statue governing the area of Comparative Advertising. However freedom of speech and expression as under the Indian Constitution, and the law of trademarks jointly govern the same..
Colgate-Palmolive (India) Limited vs. Anchor Health & Beauty Care Private Ltd 2009 (40) PTC 653 (Mad.) dealt in comparative advertisements. The issue involved whether a person can be injuncted from making any false, misleading or disparaging representations or from making any slanderous statements in showing, screening, exhibiting or telecasting commercial/advertisements with respect to products of any other person.
Colgate-Palmolive approached the court aggrieved by the use of the words "ONLY" and "FIRST" in the advertisement of the Anchor Health. The objection regarding the advertisement was the claim by Anchor that theirs was the "ONLY" toothpaste containing all the 3 ingredients Viz., calcium, Fluoride, Triclosan. The Second objection was the use of the word "FIRST" all round protection toothpaste. The applicants contented that even their products all the 3 ingredients and were prevalent even before Colgate had established itself as a pioneer in the world of dental care. The claims made by Anchor were contented to be false, a false statement which stops at being a mere puffery maybe within tolerance limits but any claim exceeding this limit would amount to disparagement of other person's products.
Anchor rebutted the issue by stating that the commercial contained only the positive features of the toothpaste and it did not contain any reference to any other product. With regard to the use of the word "ONLY", the same was said to mean that among the white toothpaste range. In the second objection the respondent used the word "FIRST" relates to the use of the slogan "all round protection" coined by Anchor.
The Court raised doubts regarding the applicability of the English decisions to the issue of disparaging advertisements, with regard to latest developments in U.K. The Court after doing so looked at the development of Law in India. The decision in Reckitt & Colman of India Ltd. V. M.P. Ramachandran & others, 1999 PTC (19) 741, was also looked at, after which they opined on the nexus between advertisements as free commercial speech vis-à-vis fundamental rights of consumers. The court after detailed analysis of various case law and provision came to the final conclusion that the reasons behind the use of the words "ONLY" and "FIRST" are not satisfactory. The advertisement usually gives out an impression that Anchor is the only toothpaste containing all the three ingredients. Similarly, the use of word "FIRST" is not in relation to the slogan "all round protection" as it is intented to project. The respondent has to bring out a scientific base for such claims and thus, the words "ONLY" and "FIRST" fall under the dragnets of Section 2(1)(r)(1)(i) of the Unfair Trade Practices and (vi) of the Consumer Protection Act, 1986. In this light, Anchor was restrained from using the offending words in the advertisement.
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