26 February, 2019
In a global competitive business, comparative advertising has substantial influence on consumer behaviour. The ccomparative advertisement and puffing is legally permitted as long as the comparison is honest and based on verifiable feature and not aimed to and/or extends to cause direct or indirect disparagement of competitor's goods and which does not take unfair advantage of or in any way be detrimental to the reputation of the competitor's product.
In a case before the Delhi High Court, it was alleged by the plaintiff Horlicks Ltd. (owner of Horlicks) that the defendant Heinz India Private Limited (owner of Complan) had published an advertisement for its Complan branded product which disparaged the plaintiff's health food drink product HORLICKS.
The disputed advertisement compared one cup of COMPLAN with two cups of HORLICKS and had a disclaimer at the bottom of the page which stated that "One cup of Complan (33g) gives 5.94g of protein while two cups of Horlicks (27*2=54g) gives 5.94g of protein basis recommended pack dosage". The Plaintiff's issue with the disclaimer was that it was not an integral part of the advertisement and it was wrong to state that the amount of protein in the defendant's product was double the amount of protein in the plaintiffs' product as the serving size of COMPLAN had been manipulated to have doubled the protein of HORLICKS. It was alleged by the Plaintiff that the use of same sized cups in the advertisement was wrong and the visual of one cup of COMPLAN being equal to two cups of HORLICKS was to attract the maximum consumer interest. It was contended that the impugned advertisement over emphasized the benefits of protein and by comparing only one ingredient i.e. protein, was trying to misguide consumers into believing that consumption of the defendant's product directly leads to growth.
Responding to Plaintiff's argument of disclaimer not being integral part of the advertisement, the Defendant undertook to publish the modified advertisement clearly depicting the disclaimer in future. It was submitted by the Defendant that the advertisement of the defendant gave a visual comparison of the protein content for each product based on respective recommended 'per serving' size. The recommended serving size of 33 grams for the defendant's product had not been altered since the year 1934 and therefore the comparison of the protein content for each product on the basis of recommended 'per serving' size was the most accurate, true and verifiable method of comparison. It was argued that the intent of the impugned advertisement was to educate the consumers about the protein content of both the products and the advertisement was neither disparaging nor defamatory but provided an accurate, true, verifiable and representative comparison to the consumers.
The court after hearing the parties held that "per serving‟ size is a prudent industry practice as in the absence of such practice a consumer may drink the parties' product in excess and jeopardize his health. The court opined that the advertisement published by Complan compares a material, relevant, verifiable and representative feature of the goods in question which is a protein content, one of the essential components of a health drink. The court held that the comparison of both the products in protein content is factually true and not misleading. For the purpose of comparison, the court held that the defendant is not obliged to compare all parameters and the advertiser can highlight a special feature/characteristic of his product which would set its product apart from its competitors and make a comparison with other products, as long as it is true.
Ultimately it was held that that Complan's advertisement is not misleading and there is no denigration or disparagement of HORLICKS as the factor compared is material, relevant, verifiable and representative feature. The judgment seems to be in consistent with the legal principle which permits comparative advertisement and puffing if the comparison is made on verifiable and important feature.
For further information, please contact:
Omesh Puri, LexOrbis
mail@lexorbis.com
