In the last two posts, I had discussed the facts of the Rin-Tide controversy and the position of the law on comparative advertising. It appears that mainstream media has finally woken up to the matter.
A column in the Economic Times today reports on the controversy and adds that a source from HUL has said that Procter and Gamble, the owner of Tide has gone to Court on the advertisement. The source further informed ET that employees at HUL have been asked to keep mum on the issue.
As for HUL’s official line, here’s what its spokesperson had to say on the matter:
“This advertisement reinforces the promise to Rin consumers that Rin delivers superior whiteness. This claim is based on laboratory tests done through globally accepted protocols in independent third-party laboratories.”
The advertisement apparently was timed to coincide with the weekend and Holi to catch enough eye-balls. Here’s what P&G had to say on the issue:
“We are aware of a disparaging advertisement on air against one of our brands. We will, however, continue to stay focused on growing our share via delighting consumers and focusing our communication on the benefits of our brand. As per company policy, we do not comment on any future plans…”
This certainly doesn’t seem to be the end of the matter and we at SpicyIP shall keep our eyes and ears open to further developments.
Hey Sai,
Possibly, dispargement can be challenegd under competition laws.
Check out this one:
http://www.antitrusttoday.com/2010/02/18/broadcom-disparages-monopolization-by-disparagement-claim-as-just-words/
Hi all,
Making marketing strategies and being mischievous is all fine, but if allowed, such an act would definitely open the floodgates for the advertisements on television with a lot of mud-slinging activities and defamatory statements. Irrespective of who wins among the big players, final consumers will certainly be the sufferers. Instead of capitalizing on their own USPs, companies would rely on the negative factors of their competitors, which would take ad puffing to another extreme, while there would be no limits of determining upto which level its acceptable. This would create a havoc and certainly not a good scenario.
Considering this particular case, I would say this is the worst strategy for a brand like RIN, where it is the household product for decades and is known with a good reputation. By doing this, it has himself tarnished its image and might suffer its long term effects with loosing customer base. I believe that there was certainly no need of doing this. In addition to the long term losses, RIN (HUL) will certainly suffer the heavy penalties in terms of damages, if the case goes to court. I agree that making factual statements may be digestible (even if it refers to comparison with competitors on a particular compliance or standard), but whatever is shown in the advertisement is strictly disparaging to the Tide, where the poor boy on Tide Side was almost wearing a Brown color shirt for comparison with the shining white RIN boy. This disparaging expression cannot be justified by HUL by any means. Even otherwise the advertisement doesn’t highlight that the difference is scientifically proven by tests in labs, which is the basis of difference, if any, on factual grounds.
Nevertheless, I hope to see a good and fruitful litigation ahead and expect the courts to take a serious and firm stand while clarifying the ambiguity and settling the issues.
Best Regards,
Ashwani
Dear Yogi,
Thanks for the link but from my reading of the article in the link, it appears that in the US, disparagement as a claim is not entertained that easily. One of the parties to the case cited in the article actually submits a string of decisions to support the point that disparagement does not amount to anti-trust violation. The relevant portion of the article reads thus:
“disparaging comments by competitors are protected under a presumption that, unless they pass a six-prong test, they do not cause sufficient injury to competition to violate the antitrust laws. Specifically, the statements must be (1) false, (2) material, (3) likely to induce reasonable reliance, (4) made to buyers who lack knowledge of the subject matter, (5) for prolonged periods, and (6) not reasonably susceptible to neutralization. “
Under our Competition Act, although there doesn’t seem to be a specific provision on the lines of the provision in the erstwhile MRTP Act, if one wants to, one can call disparagement as “unfair trade practice”. However, i confess this is just an impromptu proposition and I wouldn’t stand by it or hold on it without going deeper into this aspect of the issue.
But thanks for the link anyways, opens up a different front for discussion.
@Ashwani: I think you are right,one of my conclusions in the post is that there could be a decent case for disparagement. But the larger point of the post is to take a slightly more nuanced view by understanding this as a calculated act of desperation and probing the possibility of a plausible legal defense for such a marketing move. There’s something we must remember in such issues, companies like HUL undertake such “adventures”, if i may call them so, after doing a lot of homework (atleast that is what i would assume). So it could be a case of guerilla advertising with the net cost-benefit ratio reading in favour of HUL. More importantly, it is instances like these that provide us the opportunity to push the limits of our understanding of the law more. Static law, in my opinion, reflects a static business imagination, so let’s take a slightly more optimistic view of the situation.
Also, customers these days cannot be hoodwinked that easily and I would even say that this controversy gives us the best possible opportunity to assess the change in the Indian psyche, as an audience exposed to reality shows and as a customer capable of making shrewd choices and seeing through the seller’s motives.
Bests,
Sai.
jo karna hai kar lo we said and proved it rest all is bakwas
I have seen worse advertisements, but this advertisement takes the cake. In addition to being silly, I am sure any viewer will be offended by the disparaging advt. And I am sure it will draw away the consumers from being RIN / SURf purchasers ( I was one and I will not purchase their detergents any more) as they would be disgusted with HUL’s behaviour
One of the worst advt I saw is from Nirma, where the lady stops dirt from spoiling her clothes by shouting NIRMA
Marketing is all about praising about ones own product but not to degrade their rivals product.I thought HUL was a healthy competator but it proved be a filthy one.I dint expect HUL to be such a goon and I think that these kind of hard advt without any proof would definately affect the goodwill of HUL. Finally I wish to say that freedom of speech does’nt mean that one can speak or show anything rubbish.