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Advertising is most important one of the 3 promotional tools (viz : sales promotion, advertising and public relations.) and contribute strongly to the effectiveness of marketing performance.
five major decisions in developing an advertising program, known as the five Ms: Mission: What are the advertising objectives? Money: How much can be spent? Message: What message should be sent? Media: What media should be used? Measurement: How should the results be evaluated?
Used often by Japanese conglomerates that have many types of products Eg.Hitachi, SONY, Mitsubishi, Panasonic (Matsushita Electronics)
Both Tyelnol and Advil advertising their product for cure of headache is a competitive advertising but when Advil says that their product will not upset your stomach as Tyelnol will do, it is comparative advertising.
The advertised brand is explicitly compared with one or more competing brands on a specific attribute quality or overall quality and the comparison is oblivious to the audience
When it is not misleading acc. to article 2(2),3,7
Section 36A(x) limited comparative advertising by recognizing that the publishing of any misleading or disparaging facts about a competitor’s goods or services amounted to ‘unfair trade practice’.
Dgir-investigatory body- investigates of its own or on a complaint Mrtpc-judiciary body- dgir presents cases to it which are then evaluated on judicial grounds and a decision is made. to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets,
As things stand, the current legislative position on comparative advertising is that a tradesman can declare his product the best in the world, even when the declaration happens to be untrue. In fact, with the objective of declaring his product the most superior in the world, he can compare the merits of his products with others, but therein ends his liberties. The advertiser cannot claim that his competitors’ goods are bad.
Thus, truth is strong defence against any assault or challenge regardless of whether any damage has been caused as a result of it (Reckitt Benckiser versus Naga Ltd and Others).
In the said ad/television commercial, a woman presumably the mother) was shown flipping out a box of pain relievers that bore uncanny resemblance to the packaging of Moov, marketed by Paras Pharmaceuticals Ltd. Later in the commercial, another woman was shown coming to the rescue of the first woman (mom) and suggesting another remedy. She offered a pack of Volini gel to her saying, “You need a true pain reliever.”
A television advertisement promoting Ujala liquid blue showed that two-three drops of this brand were adequate to bring striking whiteness of clothes while several spoons of other brands were required for the same effect. A lady holding a bottle of Ujala was looking down on another bottle without any label, exclaiming ‘chhi, chhi, chhi!’ in disgust. The manufacturers of Regaul, a competing brand, complained to the Commission that the advertisement was disparaging its goods.
Hindustan Lever Limited advertised its toothpaste, ‘New Pepsodent’ in print, visual and hoarding media, claiming that its toothpaste &apos;New Pepsodent&apos; was ‘102% better than the leading toothpaste’. In the television advertisement, samples of saliva are taken for testing from two boys, hours after brushing. One boy has brushed with the New Pepsodent while another has brushed, according to the commentary, ‘with a leading toothpaste’. The test of the two samples are visually depicted side by side. The saliva of ‘the leading toothpaste’ shows large number of germs. While the slide of the New Pepsodent shows egligible quantity of germs. While the sample was being taken from the boys, they were asked the name of the toothpaste with which they had brushed in the morning. One boy had said Pepsodent. The response of the second boy was muted. However, lip movement of the boy would indicate that he was saying ‘Colgate’. Also, when the muting was done, there was a sound of the jingle used in the Colgate advertisement.The market share for toothpaste for Colgate and Hindustan Lever Limited was 59% and 27% respectively. The Commission, thus, was of the view that a reference to ‘leading brand’ and ‘famous brand’ was to Colgate. A doubt, however, arises that the statistics on market share are produced by market research agencies. The consumers do not know these. Thus, a viewer need not necessarily interpret ‘leading brand’ to mean Colgate.
The question had arisen before the Supreme Court whether advertisement was ‘commercial speech’ and, thus, had the protection of the Fundamental Rights under Article 19(1)(a). The Supreme Court had maintained in its judgment: ...’commercial speech’ cannot be denied the protection of Article 19(1)(a) of the Constitution merely because the same is issued by businessmen. The Constitution of India explicitly protects freedom of speech and expression in Article 19(1)(a). In reference to this article, the Supreme Court of India has held advertisements to be commercial free speech (eg, Tata Press Ltd v Mahanagar Telephone Nigam Ltd (1995 (5) SCC 139)). As with all freedoms under Article 19,commercial free speech is subject to certain reasonable restrictions by Article 19(2) of the Constitution.
Retreat of the state, in the context of free economy, is not to be misunderstood as the state leaving the economy unregulated. The state would need to develop adequate knowledge of the working of businesses in a free economy, enact laws, and create infrastructure and mechanisms for sustaining competition. The processes of liberalization and globalization are nascent. It is not late to make a beginning.
The concept of “Consumer sovereignty” requires three conditions viz: ” Perfect competition“ , ”Perfect information“ and &quot;free choice&quot; and comparative advertising creates these conditions.
Can act as tool for consumers :facilitates efficient decision-making, and fills the gap in the consumers’ search for meaningful information
Compara add(saurabh nigam)
Department of Pharmaceutical Management 1
Advertising is any paid form of nonpersonal presentation
and promotion of ideas, goods, or services by an
Advertisers include not only business firms but also
museums, charitable organizations, and government
agencies that advertise to various target publics.
Ads are a cost-effective way to disseminate messages,
• to build brand preference for Coca-Cola or
• to educate a nation's people to avoid hard drugs.
Advertising is expected to tell the truth, and to tell it well.3
Nonpersonal selling of a particular
good or service.
- TV ads
- junk mail
“… tries to develop primary demand…”
Done in the early stage of the Product Life Cycle.
Also called as informative advertising
Promoting a concept, idea, or philosophy, or the
goodwill of an industry, company, or organization.
This is closely related to the PR program of the
Also called Advocacy advertising.
Tries to get you to take
action now - buy the
product now. Immediate
Tries to point out the
advantages so if you think
about this product later,
you will buy our brand
Either directly or indirectly comparative, positive or
negative, and seeks “to associate or differentiate the two
The Federal Trade Commission (FTC), United States,
defined comparative advertising as “advertisement that
compares alternative brands on objectively measurable
attributes or price, and identifies the alternative brand by
name, illustration or other distinctive information.”
Comparative advertisement of
Jet Airways, Kingfisher Airlines and Go
Due to liberalisation and globalisation of economy, and
dismantling of “License-permit” system, entry into
production and services is no more barrier and so the thrust
of competition has shifted to aggressive and vigorous
promotion of products and services.
In a competitive environment, every representation of a
product or service, is based on its comparison with those of
the competitors and so is not about “what we are” but “
what others are not”.
These practices raise questions about truthfulness and
fairness of representation of products and services. 16
Indian courts have traditionally allowed advertisers ample
leeway when making puff statements about their products.
Even untrue claims about a product are often allowed, with
the line being drawn only at disparagement or slander of
another producer or its goods.
As a result, puff statements regularly feature in comparative
advertising and, over time, the courts have developed a set of
principles to assess the legitimacy of such claims.
EMERGENCE OF REGULATIONS
ADVERTISING IN INDIA
Monopolies and Restrictive Trade Practices Act, 1969,
(MRTP) was enacted to prevent monopolies and restrictive
trade practices in the economy.
In 1984, the MRTP Act was amended to add a chapter on
Unfair Trade Practices and provided a basis upon which a
claim could be made against disparagement of goods.
Section 36 A of the Act lists several actions to be an
‘unfair trade practice’.
The provision which pertains to comparative
representation is contained in Section 36 A(1)(x)
According to Section 36-A(1)(x) 'unfair trade practice' means a
trade practice which, for the purpose of promoting the sale, use
or supply of any goods or for the provisions of any services,
adopts any unfair method or unfair or deceptive practice
including any of the following practices, namely :-
the practice of making any statement, whether orally or in
writing or by visible representation which, gives false or
misleading facts disparaging the goods, services or trade of
The MRTP Act created a body called the “DGIR” and a
judicial body called the “MRTPC”
Then it was repealed by the Competition Act 2002.
In addition to the Monopolies and Restrictive Trade Practices
Act, the Trademarks Act 1999 (Section 28(9) –notified
with effect from September 15 2003, mandates that the use
of a registered trademark by an advertiser results in
infringement if it:
takes unfair advantage of the mark’s reputation;
is contrary to honest practice in industrial or commercial
is detrimental to the mark’s distinctive character; or
damages the reputation of the trademark.
The “Advertising Standards Council of India(ASCI)”
specifies that comparative advertisement is permissible if:-
The aspects of the products compared are clear
The comparisons do not confer artificial advantages on the
It is factual and substantiable
The consumer is unlikely to be mislead
There is no unfair denigration of the competing product.
In effect, self-praise is allowed; slander is not.
Defamation of competitors and their products is not
permissible under Indian laws
It is also held that direct reference to another product’s
inferiority cannot be carried in an advertisement.
At the same time, the courts have ruled that if a
competitor makes the consumer aware of his mistaken
perception about a product, the plaintiff cannot complain
against such action.
Comparative advertising is allowed only if it is done
within certain permissible limits, along pre-defined
Advertisers must in that case be cautious and careful
before targeting their competitor’s products.
Delhi High Court
Reckit Benckiser (India) Limited vs Naga Limited And Ors. on 21 April, 2003Equivalent citations: 104 (2003) DLT 490, 2003 (68) DRJ 441, 2003 (26) PTC 535 Del, 2003 45 SCL305 Delhi
Author: V Sen
JUDGMENT Vikramajit Sen, J
Equivalent citations:104( 2003) DLT 490,2003(68) DRJ 441,2003(26)PTC 535 DEL
2003 45 SCL 305 DELHI
Judgement by Vikramjit Sen
1. The Plaintiff has filed this Suit for permanent and mandatory injunction, being aggrieved
by the Defendant's television commercial which depicts a woman in an advanced stage of
pregnancy needing urgent medical assistance during a train journey. The doctor calls for
hot water and is handed a cake of soap which she rejects, stating that an antiseptic soap is
needed. It is not in dispute that the soap which was handed over to the doctor is identifiable
by viewers as the Plaintiff's product, namely, Dettol Soap. The doctor further states in the
commercial that "at a time like this, you do not need just antiseptic, you need a protector".
The Defendant's Ayurvedic soap is then shown and it is concurrently stated that it is a body
'rakshak' soap, the first Ayurvedic soap that completely removes all seven kinds of terms
and protects from infection. The Plaintiff's grievance is that this commercial disparages its
Dettol Soap. It is averred that the intention behind the commercial is malicious, especially
in view of the trade literature which shows that Dettol Brand sales are about 30-35 crores
out of a total sales of Rs. 230 crores. The Plaintiff has vehemently stressed that Dettol is the
leader in brand equity
Dispute related to the television commercial of Volini pain
reliever manufactured by Ranbaxy Laboratories.
The Gujarat High Court held that the advertisement
disparaged Paras Pharmaceuticals Ltd’s product, as the
inferior product depicted in the advertisement, bore uncanny
resemblance to the packaging of moov.
MOOV VS VOLINI CASE
PARAS PHARMACEUTICALS LTD. VS
RANBAXY LABORATURIES LTD.
The Commission elaborated the meaning of the provision:
In order to bring home a charge under clause (x) of section
36A(1) it must be established that the disparagement is of the
goods, services or trade of another.
The words "goods of another person" have a definite
connotation. It implies disparagement of the product of an
REGAUL VS UJALA
Regaul Blue India Ltd. v/s Jyothi Laboratories
The MRTPC was of the view that
“Colgate has been in the business of manufacturing and
selling toothpaste in India for more than 50 years and the
word toothpaste has become synonymous with Colgate
over the years.”
The Commission in addition noted that the jingle in the
background was a familiar one of Colgate. The
comparative product in the television commercials could,
thus, be identified as Colgate dental cream.
Thus, it became a case of comparative advertisement and
a claim was made of disparagement of Colgate’s
New Pepsodent v/s Colgate Case
Hindustan Unilever Limited v/s Colgate Palmolive
As former Finance Minister and one of the early architects
of liberalization, Chidambaram rightly highlights:
“A world class legal system is absolutely essential to
support an economy that aims to be world class. India needs
to take a hard look at its commercial laws and the system of
dispensing justice in commercial matters in order to ensure
FM on regulations for comparative
To summarize the interpretation of the Commission, an
advertisement could disparage other products and yet, it
would not be a case of ‘disparagement’ so long as the
disparaged product is not identifiable.
The conflicting claims would need to be assessed in the
context of the constitutional provisions on the
Fundamental Rights, privileging the freedom to speak.
Is the law adequate to prevent unfair trade
The opening up of the economy, on its own, is not going to
create and sustain competition. An appropriate law, adequate
enforcement, strong infrastructure, and a quick dispute
settlement mechanism would be needed to sustain
In the absence of it, we would only be regressing from a
‘license permit raj’ to the ‘jungle rule of the marketplace.’
Is the law adequate.....?
Do comparative ads help the brand?
It is most often seen in markets and categories that are
price-sensitive or where a benefit/attitudinal upper hand by
brand is the key to winning consumer votes in a crowded
me too category. Consumers today need instant, ready-to-
consume information on products and services.
Comparative advertising helps them make informed
This, of course, assumes that comparative advertising does
not misrepresent the facts.
Do comparative ads help the brand?
Some brands want to build their images around controversy
and ambush in which case, it may still be strategically
correct. Still, there is no research that shows consumers like
a name-caller anymore than they like a brand that seeks to
connect with them in a positive way.
Chairman and CEO,
Lintas Media Group
There is a danger that once undertakings address the merits and
inadequacies of competing goods or services, they may be
tempted to denigrate them or derive unfair advantages from
such inaccurate comparisons.
Commercial relationships may be exposed to the constant threat
of unfair practices.
The risk of consumer confusion and deception through
Comparative advertising occurs in the following situations,
•When advertisers of two or more competing brand
make substantiated but irreconcilable product claims.
•When there are incomplete comparisons.
RISK OF COMPARATIVE
While it is true that comparative advertising is a two-sided
tool, with both potential and dangers (if misused).
It can develop into a powerful tool for the marketer as well
as for consumers if handled with restraint and good
Avoiding any negative references to competitive products
and showing both products in a fair and equal manner will
ensure that dual mission of comparative advertising
is accomplished – that of educating the consumer and
selling the product.