Comparative Advertising Trademark

Real Icecream, Real Disparagement: Bombay HC Shuts Down Amul’s Advertisements (Part II)


[In Part I of this post, I had laid out the facts of the case and studied the viability of the claim of generic disparagement under law. I had also looked into one of the primary issues of this case – whether frozen desserts all contain “vanaspati/vanaspati tel.”]

One of the contentions raised by Amul was that this was a case of comparative advertisement, which permitted puffery of its products. (Our posts on this subject can be accessed here.) I have reproduced some of the relevant arguments raised by them to support this contention:

  • Whilst considering television advertisements, a frame by frame and/or elaborate analysis of the advertisement is to be avoided. Advertisements (more particularly, competitive ones) are to be seen from the perspective of an aware and ‘alert consumer of goods;
  • If the purpose of the advertisement is to make the consumer aware of his mistaken impression, or correct a wrongful impression then the Plaintiff cannot be heard to complain of such an action.
  • As long as the advertisement is by and large truthful, the advertiser must be given enough latitude and room to play around in the grey areas of advertisement and the plaintiff ought not to be hypersensitive.

Comparative advertising?

The court rejected all of the above contentions one by one. At the outset, it reiterated that while comparative advertising permits puffery, this cannot extend to belittle, malign and discredit the products of rival as had been done in the present case. The court held that in this case it could not be said that the plaintiff was undertaking an elaborate, frame-by-frame analysis. It reasoned the same by observing, “The impugned TVCs, seen as a whole, convey to the public clearly by content, intent, manner and meaning that Vanaspati in large quantity goes into Frozen Desserts. This is shown by the Vanaspati falling into the cup in the visual in both the impugned TVCs seen together with the voice overs.” Further, since the facts portrayed by the TVCs were wholly incorrect, the question of hypersensitivity of the plaintiff did not arise.

This is in consonance with the available case law on comparative advertising i.e. HUL v. Reckitt & Beckinser, Pepsi Co v. Coca Cola, Marico v. Adani, etc. These cases reveal that for a case to succeed on the count of slander of goods through comparative advertisement, it is important for there to have been (a) a false/misleading statement regarding the goods, (b) that deceived consumers and (c) was likely to influence consumer behavior. In the present case, Amul’s TVCs had (a) made a false statement regarding the constituents of “frozen desserts” which has the effect of (b) deceiving/ potentially deceiving ordinary consumers who are aware of the health issues associated with vanaspati. The TVCs (c) not only effectively instruct against the purchase of such frozen desserts, but also influence the same through the real operation of point (b). The underlying factor in all this is that it is unlikely that people will purchase products that include constituents that they perceive to be bad for health.

The “alert and aware” consumer

As highlighted above, Amul also argued that the standard in a case of comparative advertisement, is that of an “alert and aware” consumer. Such a customer would be able to look at the packaging and tell that “frozen desserts” do not actually include only “vanaspati/vanaspati tel”. The court disagreed with this and reiterated that the TVCs as a whole denigrate the product. In view of this, the effect of advertisements on the masses, as well as usage of “vanaspati” in common parlance, it could not be said that an alert consumer would behave in the way as argued by Amul.

It is true that in cases like Glaxo v. Heinz, the Delhi HC noted that in a case of comparative advertisement, the court may expect the consumer to take the advertisement with a pinch of salt. The public is presumed to expect some amount of hyperbole in advertising. Even so, it seems a bit much to expect an ordinary consumer to know that both frozen desserts and icecreams may contain milk. Such consumers who are largely unaware of the afore-mentioned fact are also likely to be swayed by advertisements that give out the impression that “frozen desserts” are inferior in purity to “icecreams” by virtue of being made out of “vanaspati/vanaspati tel” – which is perceived to give rise to health problems. This is also in consonance with the court’s observation in Glaxo that, “the more precise and specific the claim, the more likely it was that the public would take it seriously.”

Finally, on the question of correcting the consumer’s mistaken impression, the court held that this had not happened in the present case. And in fact, it had been Amul who had gone ahead and led the consumer into the mistaken belief that all frozen desserts contain vanaspati/vanaspati tel.The court thus rejected the contention that there had been permissible comparative advertisement in the present case, upheld generic disparagement of “frozen desserts” and restrained the TVCs from being aired.

According to reports, Amul is set to appeal this decision soon. Aside from the substantive holding in this case that may or may not be reversed in appeal, I find that the Bombay HC has through its comprehensive, objective order, upheld the sanctity of public information. This, especially when seen in the context of advertisements that not only have a wide reach but also significantly influence public knowledge and consumer behavior (see here and here). To conclude in the words of the judge in the aforementioned Pepsi Co case, “Effective advertising delivers a message that is remembered. It can change the way the world views a product or service..”

Image from here.

Sreyoshi Guha

Sreyoshi is a law student at Symbiosis Law School, Pune. Her favourite thing about Intellectual Property Law is Copyrights. She can usually be found doing one of three things: dog-earing her favourite pages of her books, looking up a Zomato menu, or day-dreaming of the day she'll finally meet John Mayer. She doesn't have any notable achievements, except probably that one time when she encountered a crazy pigeon, and lived to tell the tale. Send her your thoughts at: [email protected]

Leave a Reply

Your email address will not be published.