Brittania gets the better of Unibic in Court: Not Having Such a "Great Day" After All!

We bring to you a guest post from Kruttika Vijay , a brilliant fourth year law student from NALSAR, Hyderabad, one of the India’s premier law schools. I greatly enjoyed reading her note, and am sure you will too. It deals with the controversial and highly entertaining issue of comparative advertising. And centers around on a recent case where an Indian court had injuncted a comparative advertiser. As many of you may know, Indian ad’s are some of the most creative the world over and we need to ensure that the law leaves enough leeway to encourage such creativity (of course, within reasonable bounds). We reproduce her note below and welcome comments from readers (and please don’t forget the view images of these ad’s in the web version of this post):

“As consumers, it is always exciting to see an ad take a potshot at a competitor- in the hope that this war of words will lead to more creative copy in advertisements. However, the Courts have never shied away from curbing such speech in the event it considers the same to affect the trade and services of a brand in an unfair manner.

This is what Unibic India found soon after the launch of their biscuit ‘Great Day’. Accompanied with the tagline, “Why have a good day, when you can have a great day!”, this obvious stab in the direction of competitor Britannia’s ‘Good Day’ biscuits, has led to the issuance of an injunction order by the Bangalore City Civil Court on December 12 in 2007. The order also now restrains Unibic from placing any further advertisements that disparage ‘Good Day’ in any manner especially as in their copy where they urge consumers to try Great Day and not ‘any other mere biscuit’.

However, this must be examined in the larger scheme of freedom of speech and caveat emptor vis-à-vis market ethics and mockery. Following the relevant provisions in the Trademark Act, 1999 and the Rules framed thereunder, it is interesting to note that as long as the representation made in an advertisement is ‘honest’, such would be an exception to the infringement of a registered trademark. The MRTP Act also provides under Section 36, that there may be no disparagement of a competitor’s product- this of course left to be decided at the discretion of the Courts. The Courts usually follow a three formula test, examining- intent, the manner of the commercial, and the storyline (in case of a commercial) and the message that sought to be conveyed.

Thus while a contrast with a competitor’s product, may be considered ‘honest’ use of such trademark, any attempt to exaggerate the facts or prove to the consumer that the brand being advertised is superior without any other facts, will in all probability result in an injunction. Therefore, at least in the Unibic case, while the tagline was appreciated by most, it had to go.

Perhaps, Unibic can take a leaf out of the Kingfisher book which cheekily pulled off an advertising campaign without being subject to any injunction! Early this year, when both Jet and Kingfisher Airlines started flights to New York daily, Jet Airways put up a hoarding with the phrase “We’ve Changed!”. In probably one of the most brilliant campaigns that the Indian advertising scene has exhibited, Kingfisher almost immediately put up a hoarding right above, with the words “We made them change!”.

The result: Jet Airways almost immediately pulled down its hoarding, with no reply to Kingfisher’s tongue-in-cheek advertising. And to top it all off, at least the present Indian law has no room for Jet to successfully sue Kingfisher, since there was no disparaging of the brand, nor a use of Jet’s trademark in any manner.

At least one thing’s for certain, whether or not the advertiser’s continue to complain about the curb on freedom of speech, and competitor’s drag companies to Court, there are loopholes that at least leave room for innovative advertising- and keep consumers definitely entertained.”