Aishwarya VM
“Doing business without advertising is like winking at a girl in the dark. You know what you are doing, but nobody else does” – Steuart Henderson Britt
Advertising is a key business strategy adopted by all businesses for their growth and sustenance. However, do businesses have their ‘advertisements’ within the Freedom of Speech and Expression?
In the case of Hamdard Dawakana v. Union of India, it was held by a five Judge Bench of the Supreme Court that a commercial advertisement that has an element of trade or commerce does not fall within the concept of freedom of speech. However, in the Tata Press Ltd. v. MTNL, a three-Judge Bench of the Supreme Court recognized Commercial Speech and Advertisement as fundamental in a democratic economy and brought them within the umbrella of Art.19(1)(a) of the Constitution of India. Technically, the Hamdard decision has not been overruled by a larger bench and it still stands as good law.
What is Comparative Advertising and Disparagement?
Comparative Advertising is a strategy where a product is advertised by comparing it with a peer product, in any factual, accurate, or substantial manner. In the modern era of cut-throat competition, comparative advertising is permitted by the Advertising Standards Council of India (ASCI) itself subject to restrictions like unfair trade practice restrictions, trademark violations, and consumer rights.
Comparative Advertising involves excessive amounts of puffing up one's own product. Disparagement on the other hand means derogating, dishonoring, or estimating to be of lower value, another peer product.
Does Disparagement fall within the Freedom of Commercial Speech?
More often than not we might have seen rival products competing with each other through advertisements. There are several interesting cases, some of which are as follows:
In PepsiCo. Inc. and Anr. v. Hindustan Coco-Cola Ltd. & Anr., involving an advertisement of ThumbsUp where Pepsi was portrayed as a ‘sweet drink meant only for kids’ the Delhi High Court held it to be a case of disparagement and granted injunction. The Court also put forward the factors that should be kept in mind while deciding the question of disparagement. They are:
Intent of commercial
Manner of the commercial
The storyline of the commercial and the message sought to be conveyed by the commercial.
In Havells India Ltd. v. Amritanshu Khaitan, in an advertisement between Eveready and Havells LED Bulb, where consumers were asked to check lumens and price before buying LED bulbs, the Court held that it was only a case of comparative advertising and hence no disparagement is involved.
In Reckitt and Colman of India Ltd. v, Kiwi TTK Ltd., in a case between Kiwi Shoe Polish and Cherry Blossom Shoe Polish, regarding the amount of wax contained, the Court gave a conditional injunction and found that it was a case of disparagement if the logo still depicts the other party’s product.
In Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd., in a case between Colgate and Pepsodent, the lip-sync denigrated Colgate. The MRTP Commission found it to be a disparagement and ordered an injunction.
In Dabur India Ltd. v. Emami Ltd., in a case where Emami advertised by saying that Dabur’s Chyawanprash has 50% excess sugar, the Delhi High Court favored Emami by outweighing disparagement with business innovation.
From the cases above, it is clear that the principle of ‘your right to swing your arm ends where my nose begins’ is applicable even for comparative advertising. Thus, the right to freedom of commercial speech is also subject to an additional restriction of disparagement.
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