[This post has been co-authored with our SpicyIP intern Ananya Dutta. Ananya is a 4th year student pursuing B.A LL.B (Hons.) from the Institute of Law, Nirma University.]
In an extremely detailed order (pdf) concerning the issue of comparative advertising and disparagement, the Delhi High Court held that “an advertiser ought to have the freedom to make advertisements with generic comparison highlighting the features of its own product..” thereby giving leeway to the creative freedom in case direct disparagement is not established. While there is a plethora of decisions to settle the position on comparative advertisement and disparagement in case the competing product is referred to or is identified, the position on generic comparison where the advertisement does not hint towards any competing product, is unclear. The present order seems to address that gap by rightly deferring to the freedom of expression instead of hypersensitivity.
Matters pertaining to comparative advertisements and disparagement are usually a little tricky as it involves an assessment of not only the legal propositions but also of the factual narrative of the alleged advertisement to ascertain the overall impression that it creates on the mind of the audience. This can be seen from the numerous posts on the blog concerning disparagement (notably see here, here, here and here). In the current case however, the facts were relatively simple- the Plaintiff, who is the market leader in orange flavoured glucose product approached the court against the Defendant’s advertisement that merely compares its orange flavoured glucose product with another unnamed product, and alleged disparagement.
The case concerned a television commercial (TVC) wherein in a school race, a participant sipping Dabur’s (Defendant) “Glucoplus C” outran the participant sipping another orange flavoured glucose powder, who, despite consuming her drink was depicted to be tired through the race. After the race, the losing participant’s mother asks the winner’s mother how her daughter won even though both their daughters consumed an orange flavoured glucose drink. Her response is that it’s not the same drink, and she then lists out some specific benefits that Glucoplus C gives. The Plaintiff, Zydus, who are the manufacturers of Glucon-D, an orange flavoured glucose powder drink, approached the court alleging that “the gestures of disappointment and frustration on the face of the mother whose daughter lost the race is sufficient to infer disparagement.” Furthermore, it alleged that the commercial disparaged the Plaintiff’s product (Glucon-D) as it holds majority of the market share in the orange flavoured glucose powder segment. The court however, rejected the Plaintiff’s argument and cautioned against a hyper critical assessment of a TVC.
The court starts with its assessment by framing the issue – “Whether the impugned TVC is identifiable with the Plaintiff’s product and if so, whether it is disparaging?” For this, the court’s approach was a step by step assessment of the TVC to hold that there is no disparagement of the Plaintiff’s product by the impugned TVC. The thumb rule in such cases is that comparative advertisement puffing one’s product is generally accepted unless it denigrates the reputation of the competing product or category. [Note: For the readers who wish to understand the difference between comparative advertisement and disparagement, we suggest taking a quick look at this post by Prarthana].
Whether the competing product in the TVC is that of the Plaintiff: For this the court adopted an “ordinary viewer” test and clarified the impact of the TVC has to be seen from the perspective of an ordinary viewer who wants to purchase the product (here an orange glucose powder). For this, mere fleeting allusion to an unidentified product will not suffice, but rather there must be a depiction of some attributes of a product such as the container, coloured packaging, mark, logo etc. The court further clarified that the viewing of a television commercial is not to be considered on the benchmark of repeated views, as is done by the Court during hearings and otherwise. Commercials are viewed for short fleeting periods and the impact has to be seen as a whole in the short time period in which it is viewed.
Assessing which category the comparative advertisement of the TVC will fit in: After viewing the TVC from the eyes of an ordinary viewer, the next thing that is to be determined is under which head does this advertisement fall in. For this the court identified 4 categories- 1) Where there is a direct comparison with a competitor’s product; 2) Where there is a comparison with a specific product which can be deciphered due to some references such as a similar mark, a similar logo; 3) Comparison with a product of related category with no direct reference; 4) Where there is a general comparison without an identified product category as a whole. Once the category is determined, the relevant judicial principles for comparative advertising laid out in the precedents will apply to the particular case.
Assessment of the disparaging elements: Adopting the three principles of disparagement elucidated in Pepsi v. Hindustan Coca Cola and Dabur India v. Colortek Meghalaya (assessment of intent of the advertisement; Manner of the advertisement and; Effect of the advertisement) the court clarified that even in case of generic disparagement, there has been some reference or some usage or depiction which has clearly led to the conclusion that it is the aggrieved party’s product or the entire product category is being referred to. However, in this assessment there cannot be a presumption that the product of the plaintiff is targeted.
In case there is no disparagement, no objection can be raised. Comparative advertisement highlighting strength of one’s advertisement, without denigrating the quality of the competitor’s product should be permissible. In case of a generic comparison of one’s product with the product category it cannot be said that the reference is made to the market leader.
On the facts, the court held that the Defendant’s assertion of “25% glucose in every sip” is not a misrepresentation as the contents of its powder clearly shows that it carries a higher proportion of glucose. Secondly, Defendant’s assertion that glucose gives instant energy, cannot be regarded as misrepresentation too as the Plaintiff’s packaging and advertisements itself assert that glucose give higher energy. Furthermore, the court, relying on Dabur India Ltd. v Colortek, clarified that where there is no overt or covert reference, it cannot be presumed that the advertisement is directed towards the market leader, merely on the basis of market share.
Freedom of expression takes the cake in case of indirect disparagement
The order is clear and thorough in its assessment of the facts in hand. The most notable takeaway from the decision is its rationale on generic comparison vis-a-vis generic disparagement. The order clearly stated that in the previous cases where the impugned TVC was found to be generically disparaging to the product category, there was a depiction of the competitor’s good or product category in a denigrating manner. For example- in Dabur v. Coalgate Palmolive, Defendant’s TVC denigrated the category of ‘Lal Dant Manjan’. Similarly, in Dabur v. Emami, the Defendant’s TVC denigrated Plaintiff’s ‘Chayawanprash’. Furthermore, in these cases, denigration of the Plaintiff’s product or product category was the key element to the whole concept of the TVC.
In the present case, however, the court adopted an overall broader outlook towards the assessment of generic disparagement with a set of qualifiers. First off, it prescribed the test of “ordinary viewer” to assess the TVC and expressly prohibited a hypercritical assessment of the concerned TVC or assessing it after repeated viewing. And in case no direct denigration of the competing product or product category is made out, it deferred to the creative freedom of the advertiser, holding that it “ought to have the freedom to make advertisements with generic comparison highlighting the features of its own product and if the same is done without an allusion to any market leader, the objection cannot be raised unless representation being made is absolutely false or misleading.” Thereby ensuring that while creative freedom will take a higher pedestal in cases of indirect or subtle generic comparison, it cannot be absolutely false or misleading.
Case for a strict assessment of advertisements concerning food products?
Co-incidentally there has been a recent ruling by another single bench of the Delhi High Court, in Dabur v. Advertising Standards Council of India, where the high court held that “there is very thick line that divides a harmless hyperbole and misleading claims made in advertisements, especially, when the products relate to human consumption and claims are made about the superlative qualities of the products on human health.” Thereby prescribing a higher standard for assessing the claims in the advertisement concerning food products. Though the case did not concern the issue of disparagement but rather the element of puffery in the advertisement, I wonder if the courts should have a separate yardstick to assess the element of disparagement in products having an impact on human health. (you can also refer to the posts by Sangita dealing with a similar question here.)