Comparative Advertising Trademark

Comparative Advertising ― Havells v. Eveready: Who’s the brightest of them all?


havellsAs is known, every product has different features/characteristics and advertisers like to highlight only the most advantageous features and consequently remain silent on the weaker aspects of their products. In this regard, the main issue in Havells v. Amritanshu was whether or not an advertisement which compares one product with a similar rival product must necessarily compare all its features in order for it to be an ‘honest’ advertisement. The Delhi High Court held that failure to compare all the features of a product would not in itself disparage the competitor’s product. “In the opinion of this Court, it is open to an advertiser to highlight a special feature/characteristic of his product which sets it apart from its competitors and to make a comparison as long as it is true.”

The case dealt with an advertisement which compared “Eveready LED Bulbs” with the plaintiff’s product i.e. “Havells LED Bulbs”. The main parts of the advertisement (see picture) are: the tag line “Switch to the brightest LEDs” (referring to the defendant’s bulbs) and a chart that compares the brightness and price of the defendant’s bulb with that of its competitors and cautions the consumer to “check lumens and price before you buy”.

Plaintiff’s arguments:

The plaintiff argued that the statement “check lumens and price before you buy” invited the consumer to compare only two features of a bulb (brightness and price) and excluded comparison with other relevant features such as power usage, lifetime etc. Limiting comparison only to these two features could mislead the consumers into believing that the plaintiff’s product was inferior on all fronts and was still more expensive. It was submitted that even if the defendant’s bulb was brighter, it was inferior in relation to the ‘power factor’ and ‘over all life’. Therefore, the advertisement fell foul to the rules laid down in the Advertising Standards Council of India Code (Chapter IV) as well as Section 29(8) and 30(1) of the Trademarks At, 1999. These provisions require commercial advertisements to be in “accordance with honest practices in industrial or commercial matters”.

Defendant’s arguments:

The defendant, however, claimed that limiting comparison to a few features would not in itself lead to a misleading or dishonest advertisement. This was due to several reasons: First, such a practice is justified since the packages of all the rival products did not contain information with regard to all the parameters suggested by the plaintiff. Most of the competitor’s products also specify only lumens and price and the defendants did not have the requisite data for comparing other features. Moreover, the plaintiffs themselves highlighted only brightness of their bulb/LED on their packages. Second, it was contended that, with respect to bulbs, brightness is the most important feature as its primary purpose is to dispel darkness. Third, there was no requirement in law to disclose and compare every feature in a comparative advertisement. Further, the law allowed an advertiser to compare and highlight the advantages of his goods over the goods of a competitor.  Lastly, it was argued that the defendants had not made out a case for special damages and their case should therefore not maintained. Relying on Philips India Pvt. Ltd. vs. Shree Sant Kripa Appliances Pvt. Ltd. CS(OS) No.1913/2014 it was submitted that in order to maintain an action for disparagement a case for special damages (i.e. proving a general decline in business due to the advertisement) must be made out.

Court

The court lays down several tests and standards to be applied to cases of comparative advertising before answering the issue at hand. In this regard, it is held that the standard used in deciding a case of comparative advertisement is different from the strict standards used in interpreting a Will or a clause of an agreement. Citing Marico Ltd. vs. Adani Wilmar Ltd. CS(OS) No.246/2013 , the court held that the public expects a certain amount of puffing and hyperbole in advertisements. Therefore, the standard to be applied is whether “a reasonable man would take the claim being made as one made seriously.”

With regard to the test of ‘honest’ advertising as per Section 29(8) and 30(1), the court held that this is an objective test which depends on a ‘reasonable audience’. Honesty also depends on the kind of goods or services in question. In this regard, the court uses a curious example: an advertisement for second hand cars may not be honest if used to encourage the use of ‘powerful medicines’.

In relation to the test of a ‘misleading advertisement’ the court holds: “two essential elements must be satisfied. First, misleading advertising must deceive the persons to whom it is addressed or at least, must have the potential to deceive them. Secondly, as a consequence of its deceptive nature, misleading advertising must be likely to affect the economic behaviour of the public to whom it is addressed, or harm a competitor of the advertiser.”

After discussing these standards, the court holds that there is no rule which requires an advertiser to necessarily compare all the features of a product. Therefore, comparative advertisements can be limited to comparing certain relevant features (brightness of a bulb being one of the most essential features). It is also observed that it is not possible to lay out an exhaustive list of features which should be mentioned in comparative advertising as such features differ from manufacturer to manufacturer and consumer to consumer.

 Other posts on comparative advertising can be read herehere, here, here

Aparajita Lath

Aparajita graduated from the WB National University of Juridical Sciences, Kolkata. She was formerly an editor of the NUJS Law Review. She is a lawyer based in Bangalore. All views expressed by her on the blog are her personal views.

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