"Beauty is a relation, and the apprehension of it a comparison".....
------ Gerard Manley Hopkins
The recent Horlicks – Complan spate has triggered a new row hitherto unseen and unheard in Indian advertising……. Blatant Comparative Advertising.
Comparative advertising, as the name suggests, is advertising where a party (the advertiser) advertises his goods or services by comparing them with the goods or services of another party. Such other party is obviously his competitor and is often the market leader in the business (Horlicks with about 60% and Complan with about 15 %). The comparison is often a desperate attempt to eat into the share of the compared and is characteristically done by either signifying that the advertiser's brand is of the same or a greater quality to that of the compared or by denigrating the quality of the compared product (in the Horlicks vs Complan case both has happened and frankly I am quite confused as to who is saying what and should I stop buying both and go back to age old practices like banana powder and raggi malt).
Now that this ad has evoked the topic, I plan to bring out my gyan on the subject and hammer who ever is bothered to read it. Comparative advertising can be as blatant as the ones that we see now in the Horlicks-Complan who is better and why? war of visuals and words or can even be subdued and suggestive as in case of a Baleno comparing it with the "luxury German cars" on the market. If you rewind a bi,t Captain Cook when it launched had an ad that made a not- so- overt- but -not -so -covert reference to Tata Salt by showing a package that looked exactly like it. As such advertising does not contain any trademarks it is not relevant to the law of trademarks (it may, however, constitute a breach of the code of ethics of the watch dog ASCI who watches and barks but seldom bites).
Comparative advertising as a practice does not have to be limited to the use of the identical trademark, as creative advertisers will often do play of words. It was often used to suggest the brand leader ship that you compare your brand with a brand leader or often an icon but in some other unrelated category. For instance when one writes a copy which says Lotus bawa the BMW in shoes, it is just to show its brand position and not to derive from the brand equity of BMW and for sure not to ridicule or demean it. When Whisper was launched ,again, it was and had to be compared with Carefree listing out the features that the new brand had and the old one didn’t (alas!) but without taking the name of the compared. this left the old one bleeding and the new one absorbing it fully..( the pun is intended)....This again is better off and more acceptable to the compared even though he will grumble but can do nothing more.
If the points in comparison is testable and as long as it is provable it seems the courts have no issues here, and I am told that the Mumbai high court didn’t upheld Complan’s case when Horlicks started the tirade digging at the 23 vital nutrients and all the grow faster claims and bingo they are also here with all the dirty linen on the streets, washed and washed."Dogs have not the power of comparing.A dog will take a small piece of meat as readily as a large, when both are before him” said some one and how true right?? Isnt it a pity that a brand as great as Horlicks has to resort to this scale of gimmickery to sell itself? That but is a different case which we will disscuss in the next episode.
One question I have often heard being asked ( last one week I have heard this many times in the class room)is whether it is "legal" to be doing this…? If it means and generally it means that if you would be in danger of a lawsuit if you ran a comparative ad without asking permission of the other brand….. the attacker can be taken to a court of law if your ad is disparaging, that is if you claim anything about the competitors product (i.e. that your product is cheaper, faster, etc.) and it can not be substantiated in a court of law. One thumb rule is that usually such ads should be done by a reputable agency that uses statistically sound research techniques to make claims (blind taste tests, independent laboratory, etc.) so that the claimant later does not look like a fool falling flat on their face. In extreme cases it can benefit the compared too. Remember a case when Burger king ran ads about how its french fries beat McDonalds in taste tests and the result-...McDonalds actually saw a spike in french fry sales while the king did not….
Now that was interesting eh??
To be continued….>>>>>>>>>