Comparative Advertising: Legality, Implications and Need for Stricter Regulations
School of Law, University of Petroleum and Energy Studies, Dehradun, India.
Volume III – Issue I, 2021
Advertising is an important aspect of every business and with the increasing competition in today’s market, brands rely heavily on advertisement to gain consumer’s attention. Comparative advertising has become the most commonly used form of advertising to engage consumers in purchasing products of the advertiser who is indulged in this form of advertising. It works by outlining the comparison of different brands on variants like price, quality and other distinctive attributes. However, there is a thin line to cross to turn comparative advertising to product disparagement which is not permitted. Comparative advertising though an effective method to engage consumers, is the riskiest as it involves deliberately comparing a competitor’s product and sometimes also leads to treading on a competitor’s intellectual property right. Since there is no specific legislation regulating comparative advertising in India, the precedents set by courts are followed for matters arising in this regard. The Advertising Standards Council of India (ASCI) has developed a model to regulate the advertisements and along with this the Ministry of Consumer Affairs has also released the draft guidelines called Central Consumer Protection Authority (Prevention of Misleading Advertisements and necessary Due Diligence for Endorsement of Advertisements) (CCPA guidelines202) recently in August 2020 which will aim to curb misleading ads along with protection of consumers affected by such advertisements. Though comparative advertising increases awareness, there are high chances it may also lead to misleading advertisements. Also, in the process of comparative advertising many a times, brand steps into the realm of Trademark Infringement which is violation of the Intellectual Property rights. It becomes extremely difficult to judge whether the comparison of products portray the competitor’s product in negative light. In this paper we will discuss comparative advertising and the legal provisions related to it through Indian perspectives as well as the International perspective. Also, the paper focuses on the need for regulations to keep a check on comparative advertising for public interest keeping in mind interest of all stakeholders while pronouncing a decision on the same.
Keywords: Comparative advertising, Product disparagement, judicial precedents, Indian perspective, International perspective, CCPA guidelines 202..