Comparative advertising

CHENNAI3rd Floor, ‘Creative Enclave’,

148-150, Luz Church Road,Mylapore,

Chennai - 600 004.Tel: +91 - 44 - 2498 4821

BANGALORE Suite 920, Level 9,

Raheja Towers,26-27, M G Road,

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COMPARATIVE

ADVERTISING

Horlicks or Complan? the comparison war!!!

FILMA VARGHESETRADEMARK Department



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Chennai - 600 004.Tel: +91 - 44 - 2498 4821



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DEFINITION

COMPARATIVE ADVERTISING

The term ‘comparative advertising’ refers to any form of advertising in which a trademark owner attempts to enjoy pecuniary benefits from a comparison between his product, service, or brand and that of a compet itor.



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COMPARATIVE ADVERTISING

• Comparative advertising is a marketing strategy in which a company wants to show that its product or service is better than the competitors.

• They may explicitly name a com petitor or implicitly refer to him.

• They may either emphasize the similarities or the differences between the products.

• The comparisons can be vocal or visual.• The advertised brand can have a market

share smaller than, roughly equal to, or greater than the comparison brand.



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OBJECTIVES OF COMPARATIVE ADVERTISING

• Evaluation of brand performance• To degrade the competitor’s

brand• Acceptance of brand• Convince users• Increases consumer’s information



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IMPACT OF COMPARATIVE ADVERTISING

• Influencing the perception of the consumer regarding a brand

• Current sales can be increased• Competitors brand loyalty can be

hampered• Shifting of consumers



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LEGAL PROVISIONS OF COMPARATIVE ADVERTISING

Until it was repealed by the Competition Act 2002,

Section 36A(x) of the Monopolies and Restrictive

Trade Practices Act, 1984 provided a basis upon

which a claim could be made against disparagement

of goods. Section 36A(x) limited comparative

advertising by recognizing that the publishing of any

misleading or disparaging facts about a competitor’s

goods or services amounted to ‘unfair trade practice’.



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Comparative advertising shall be permitted when the following conditions

are met:• It is not misleading• It compares goods or services meeting the same needs or

intended for the same purpose• It objectively compares one or more material, relevant,

verifiable and representative features of those goods and services, which may include price.

• It does not create confusion in the market place between the advertiser and a competitor or between the advertiser’s trademarks, trade names, other distinguishing marks, goods or services and those of a competitor

• It does not take unfair advantage of the reputation of a trade mark, trade name, or other distinguishing marks of a competitor.



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Glaxo Smith Kline Consumer Health Care Limited v. Heinz India Private Limited and

Ors. 2007 (2) CHN 44.

HORLICKSHorlicks was invented by William Horlick (William) and his brother James Horlick (James) (1844-1921) in 1873. The brothers belonged to Gloucestershire, England.

COMPLANComplan, owned by the Heinz Company, was one of the most popular health drinks in India. The name Complan was coined from the words "COMplete" and "PLANned". Complan was introduced by Glaxo Laboratories (Glaxo) in the UK during World War II (1939-1945), as an essential nutritional supplement for soldiers at the frontlines.



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ADVERTISING WAR BETWEEN TWO POPULAR HEALTH DRINK BRANDS

HORLICKS AND COMPLAN IN INDIA .

• Supremacy between these two brands started as early as the 1960s.

• The brands were involved in aggressive comparative advertising in print and television over attributes such as ingredients, protein content, growth, and flavors.

• In late 2008, the makers of Horlicks, GlaxoSmithKline Consumer Healthcare, and the makers of Complan, Heinz India, came out with advertisements that directly compared the brands using the competitor brand's trademarks.

• The advertisements talked about how their respective brand was better than the other and showed the competitor's product in bad light when compared to the company's products.



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ADVERTISING WAR BETWEEN TWO POPULAR HEALTH DRINK BRANDS

HORLICKS AND COMPLAN IN INDIA .

• With constant mud-slinging at each other, the two companies decided to solve the issue in court.

• In September 2008, Heinz moved the Bombay High Court objecting to advertisements of Horlicks which highlighted the nutritional content and price gap between the two brands, and showed Horlicks as a better and more inexpensive health drink than Complan.

• The advertisement showed the competitor brand clearly while making the comparison. Heinz later followed up with its own ad comparing Horlicks unfavorably with Complan. This prompted GSK to file a case in the Delhi High Court in December 2008 claiming that the ad released by Heinz disparaged its brand by calling it low priced, and thereby damaging its reputation.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



Tel: +91 - 422 – 6552921

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WEBSITE

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COMPLAN ADVERTISEMENT VS HORLICKS ADVERTISEMENT

.

First Suit – 2577 of 2008 (Glaxo v. Heinz)

The first suit pertains to two advertisements by Complan (Heinz). In

the first advertisement the ‘Complan Mummy’ tells the Horlicks Mom

that she’s compromising her child’s health by buying a product made

of cheap ingredients and that her (fat) child would not grow as fast

as a child who was fed Horlicks. The Complan mother then picks out

a Complan packet and explains how it has 23 vital ingredients which

would ensure fast growth of a child. The ad then shows the Horlicks

mother visibly pushing away a package bearing the Horlicks

trademark explaining how she had been misled and how she would

no longer repeat the same mistake again.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



Tel: +91 - 422 – 6552921

EMAIL

[email protected]

WEBSITE

www.altacit.com



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



Tel: +91 - 422 – 6552921

EMAIL

[email protected]

WEBSITE

www.altacit.com


.

Second Suit – 2646 of 2008 (Horlicks v. Heinz)

The second suit pertains to a print advertisement in

leading Delhi newspapers comparing the ingredients of

Complan and Horlicks with specific emphasis on the fact

that some of the ingredients in Horlicks are ‘cheap’ and

how a Child’s growth would be compromised by

consuming Horlicks. The advertisement also draws

attention to a scientific report by the National Institute of

Nutrition which substantiates the fact that Complan has

good ingredients etc.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



Tel: +91 - 422 – 6552921

EMAIL

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WEBSITE

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.

Third Suit – 547 of 2010 (Heinz v. Glaxo)

This suit which was transferred from the Bombay High

Court to the Delhi High Court was filed by Complan

(Heinz) against Horlicks. This 30 seconds

advertisement placed both the products i.e. Complan &

Horlicks next to each other, compares the prices and

according to Heinz, passes disparaging comments

against the quality and nutritional value of Complan

when compared to Horlicks.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



Tel: +91 - 422 – 6552921

EMAIL

[email protected]

WEBSITE

www.altacit.com

THIS CASE WAS DESIGNED TO:

• Analyze the advertising strategies adopted by Complan and Horlicks over the years;

• Understand the issues and challenges faced by companies while using comparative advertising;

• Examine the efficacy of comparative advertising in enhancing brand image and sales;

• Study the implications of the advertising war between Complan and Horlicks;

• Discuss and debate the legal/ethical issues involved in the case.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



Tel: +91 - 422 – 6552921

EMAIL

[email protected]

WEBSITE

www.altacit.com

JUDGMENT.

• A trader can puff up his goods in comparison to his competitor’s goods but he cannot denigrate or disparage the competitor’s goods while doing so.

• It may be permissible to state that Product A is better than Product B it is not permissible to state that Product B is worse than Product A.

• Justice Bhat also draws a distinction between advertisements in different mediums i.e. print and television with the standard of judicial scrutiny being much higher in the latter than in the former. The reason for this according to Justice Bhat is the fact that television advertisements unlike print advertisements make an instant impact across consumer classes and the level of impact of such advertisements on the consumer is much greater than a print advertisement where each word has to be read, analyzed and understood. Advertisers therefore will have to tread much more carefully when creating comparative advertisements for television.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



Tel: +91 - 422 – 6552921

EMAIL

[email protected]

WEBSITE

www.altacit.com

JUDGMENT.

• In his order, Justice Bhat finds the two advertisements in the first suits as disparaging and beyond the realm of permissible puffing. The primary reason for this is that the repeated use of the word ‘cheap’ & ‘compromise’ along with the remaining insinuations would definitely harm the reputation of Horlicks.

• The advertisements in the second suit were held to be in the realm of puffing as they seem to be based on some scientific report, the validity of which could be established only during trial.

• The advertisement in the third suit were held to be in the realm of puffing. Justice Bhat did not agree with Complan’s allegation that the manner of comparison between both products disparaged its own product and held the same to be fair.

• All three suits pertain to commercial disparagement. Justice Bhat has very clearly ruled in favour of Horlicks since the ad-campaign against them was clearly disparaging and also ordered Complan to pay Horlicks costs of Rs. 2.2 Lakhs only.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400



Tel: +91 - 422 – 6552921

EMAIL

[email protected]

WEBSITE

www.altacit.com

THANK YOU

Comparative advertising

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