Comparative advertising allowed, disparagement prohibited: Delhi HC
The Delhi High Court has shed light on the boundaries of comparative advertising, stating that while it is permissible to showcase a competing product, denigrating or disparaging the rival's product is impermissible.
image for illustrative purpose
New Delhi, May 18 The Delhi High Court has shed light on the boundaries of comparative advertising, stating that while it is permissible to showcase a competing product, denigrating or disparaging the rival's product is impermissible.
Justice C. Hari Shankar emphasised the importance of maintaining a subtle distinction between highlighting the superiority of one's own goods and claiming the inferiority of the competitor's product.
The court observed that an advertisement cannot assert that a competitor's goods are bad, undesirable, or inferior.
These observations came in a case where Reckitt Benckiser Private Ltd sought an ad interim injunction against Wipro Enterprises Private Ltd's advertisement for its Santoor handwash, alleging that it disparaged their product, Dettol handwash.
However, the court dismissed Reckitt Benckiser's plea, stating that the impugned advertisement did not belittle Dettol or any other hand wash.
"Within the limits of permissible assertions, comparative advertising is protected under Article 19(1)(a) as commercial speech. In comparative advertising, a certain amount of disparagement is implicit," the court said.
Highlighting the need to consider the advertisement as a whole rather than frame by frame, the court contended that while an advertiser may make an unfavorable comparison while promoting a product, it does not necessarily affect the overall storyline, message, or result in an unfavorable comparison.
"The advertisement should be viewed from the perspective of an ordinary viewer, without the specific intention of identifying disparagement. The words used in the advertisement should be understood in their natural, general, and usual sense, as per common understanding," Justice Shankar clarified.
The court further stated that urging the public to choose the advertised product over others is not objectionable in law, as long as there is no message that disparages or denigrates the rival product.
"The reasonable and right thinking viewer, if he desires to try Santoor after seeing the impugned advertisement in place of Dettol, or any other hand wash that he was earlier using, would do so not because the impugned advertisement denigrates other hand washes as being bereft of moisturising or softening capabilities, but because Santoor contains sandal, and sandal moisturises," the court said.
"There is an ocean of difference between these two impressions. The first disparages; the second does not. The impugned advertisement, in my opinion, is on this side of the lakshman rekha, not that," the court said.
