When Comparison Turns into Controversy: Protecting Brand Reputation in Ads

Explore how comparative advertising in India can boost a brand while risking legal disputes. Learn the legal framework, key case laws, and strategies to protect brand reputation without disparaging competitors.

When Comparison Turns into Controversy: Protecting Brand Reputation in Ads

Introduction

In today’s competitive market, advertising plays a crucial role in shaping consumer choices. Among various strategies, comparative advertising—where a brand compares its product to that of a competitor—has become increasingly common. While it allows businesses to showcase their strengths, it also raises concerns about fairness, ethics, and the potential to harm the reputation of rival brands. Striking the right balance between healthy competition and unlawful disparagement is essential to protect both consumer interests and brand goodwill.

Comparative advertising, a potent marketing tool, walks a fine line between a legitimate claim of superiority and the illegal act of disparagement. In India, this has become a hotbed for legal battles, with courts and regulatory bodies like the Advertising Standards Council of India (ASCI) constantly trying to define the boundaries. The core issue is when a brand's attempt to "puff up" its product turns into an act of damaging a competitor's reputation. 

What is Comparative Advertising?

Comparative advertising involves directly or indirectly comparing one’s goods or services with those of a competitor. Such advertisements often highlight superior features, better pricing, or higher quality.

  • Permissible comparison: Focusing on one’s own merits (e.g., “Our toothpaste fights cavities 2x better”).
  • Impermissible disparagement: Mocking or ridiculing a competitor’s brand (e.g., portraying the rival toothpaste as unsafe or harmful).

While puffery and exaggeration are common in advertising, the law draws a clear line when it comes to false claims and brand disparagement.

The Legal Framework

​The legal landscape in India for comparative advertising is governed by a combination of statutes and judicial precedents: 

​The Trade Marks Act, 1999 (Section 29(8)): This is the most crucial piece of legislation. It states that an advertisement that takes "unfair advantage" of a competitor's trademark, is "contrary to honest practices," is "detrimental to the distinctive character," or "damages the reputation" of that trademark constitutes infringement. This provision is the primary ground for a trademark infringement suit in comparative advertising cases. 

​Judicial Pronouncements: The courts have established a clear distinction between "puffery" and "disparagement."

​Puffery: An advertiser can claim their product is the "best," "number one," or "most effective" without specifically naming a competitor. This is considered permissible trade "puffery."

​Disparagement: An advertiser cannot say that a competitor's product is "bad," "ineffective," or "inferior" in a way that slanders or denigrates it. The comparison must be based on a "material, relevant, verifiable, and representative" feature.  mes to false claims and brand disparagement.

The Court restated this balance by highlighting three key principles:

·        It is permissible for an advertiser to undertake an advertising campaign to promote its own product as long as it is not deliberately tarnishing or defaming the competitor’s product.

·        That there are no derogatory remarks made against any competitor’s product.

·        While puffing is permissible, defamation and tarnishing are not.

 

Protecting Brand Reputation

​Brands employ several strategies to protect their reputation in this competitive landscape:

​Legal Action: The first and most common recourse is to file a trademark infringement and disparagement suit, seeking an injunction to stop the airing of the offensive ad.

​ASCI Complaints: Brands frequently lodge complaints with the Advertising Standards Council of India (ASCI), a self-regulatory body. ASCI's guidelines explicitly prohibit ads that unfairly denigrate, attack, or discredit a competitor. ASCI can direct the advertiser to modify or withdraw the ad. 

​Counter-Advertising: Some brands choose to respond with their own campaigns that highlight the strengths of their product without directly attacking the competitor.

​Public Relations: Companies often issue press releases or social media statements to clarify their position and counter the claims made in the competitor's ad.

​In conclusion, while comparative advertising is a legal and powerful tool, the law and judicial interpretation in India have made it clear that a brand's right to claim superiority ends where a competitor's right to their brand's reputation begins. The key is to compare without condemning and to state facts truthfully without misleading or defaming a rival.

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Key Case Laws and Controversies

​The evolution of comparative advertising law in India can be best understood through landmark cases:

​Reckitt Benckiser vs. Hindustan Unilever Limited (HUL): This is a long-standing rivalry that has produced several key rulings.

​In a case concerning Dettol vs. Lifebuoy, Reckitt Benckiser argued that a Lifebuoy ad denigrated its Dettol antiseptic liquid. The Delhi High Court held that while an advertiser can state their product is better, they cannot say the competitor's product is bad. The court granted an injunction against the disparaging part of the ad. 

​Similarly, disputes over products like Harpic vs. Domex and Vim vs. Dettol Healthy Kitchen have seen courts consistently reiterate the principle that an ad can't show a competitor's product as ineffective or of poor quality.

​Dabur vs. Colgate: In a famous case, Colgate's ad featured an actor demonstrating that a rival tooth powder (visually similar to Dabur's 'Lal Dant Manjan') was abrasive and left scratches on a glass sheet, implying it was harsh on teeth. The court found this to be disparaging and granted an injunction, stating that even if a rival product isn't explicitly named, a visual representation that slanders a class of products within which the plaintiff's product falls is a form of illegal disparagement.

​HUL and Himalaya filed suits, arguing that pH is not the only factor for assessing a soap's quality and that the ads were misleading and denigrating.

​The Bombay High Court initially granted an interim injunction but later modified it. It allowed Sebamed to continue its campaign, holding that a truthful, scientific comparison of a product's characteristics (like pH) is permissible. This ruling showed that if a claim is factually verifiable and truthful, it can be used even if it puts a rival product in a negative light, as long as it doesn't cross the line into defamation.

Conclusion

Comparative advertising is a powerful but double-edged sword: capable of elevating brand stature when practiced with integrity, or of staining reputations when wielded recklessly.

The growing judicial vigilance, as evident from recent Indian court rulings, reinforces that advertising must be ethical, truthful, and respectful of competitors’ intellectual property and brand equity. Creativity must never come at the cost of credibility or legality. Brands that embrace this balanced approach not only avoid legal pitfalls but build sustainable consumer trust and long-term goodwill in an ever-competitive marketplace.