Comparative advertising in India has mostly been adversarial unlike those in Western markets; what gives?
Comparative advertising is a fairly common concept in the west. The most recent campaign by Google Pixel comparing itself to iPhone is probably one of the best pieces of communication to have come out in a long time.
Comparative advertisements as seen in the west are often based on funy and witty concepts. For example, BurgerKing often engages in comparative advertising with McDonalds.
Another example is Apple vs Windows.
However whenever brands have tried to resort to comparative advertising in India, they end up getting in trouble. For example, Rin vs Tide or Harpic vs Domex. We have also seen instances of the audiences getting offended on behalf of the rival brands.
Nandita Chalam, a lecturer at the Xavier’s Institute of Communications (XIC) and ex senior VP & ECD at JWT,says the Indian ads lack the right tonality for such campaigns to get through without trouble. “The tonality of the communication matters. The ads in the west mostly don’t downright degrade the rival brand,” she explains.
Nisha Sampath, brand consultant and founder, Bright Angles Consulting, says whenever brands in India are resorting to comparisons, they should ensure the ads are rooted in Indian culture instead of just copying the west.
“ Humour as a concept is very acceptable in the west. They use humour very well in their comparative ads so it doesn’t come across as offensive.”’
Citing similar thoughts, Samit Sinha, founder and managing partner of Alchemist brand solutions, says that as an advertising market, India is not mature. “Unlike the west which has always had an open economy and a number of brands playing for each other, our economy has opened up a little over 40 years ago. As an advertising society we are still not as evolved.”
“Humour that is often a great advertising tool for story telling is somehow rarely seen in comparative ads in India,” adds Sinha.
According to Abhijit Awasthi, co-founder of Sideways Consulting it is a vicious cycle. He says the problem is not the creativity as much but the law which doesn’t let you name any brand directly.“In India you cannot do comparative advertising by stating names. Hence these ads may come across as quite boring,” he adds.
What does the law say about competitive advertising in India?
Section 29 (8) of the Trademarks Act, 1999 (the Act) provides for situations when advertisement of a trademark constitutes infringement and includes any advertisement contrary to honest practices in industrial and commercial matters; or is detrimental to its distinctive character, or is against the reputation of the mark.
Further, Section 30 (1) of the Act, impliedly allows Comparative Advertising as an exception to Section 29 by stipulating that an act in accordance with honest practices in industrial and commercial matters and that is not taking unfair advantage or is detrimental to the distinctive character or repute of another trademark, does not constitute infringement and is thus by implication allowed under law.
Hence, comparative advertising is allowed under Indian law in the ordinary circumstances unless an advertisement is disparaging or denigrates a product and/or a trademark.
However, there are instances where the law is compromised. As per Chalam, many brands purposefully resort to comparative advertising. “These ads are released on Fridays and they are aware that the rival brand will take action. However, since the offices of ASCI and other authorities are closed on weekends, the ad gets a large amount of media and attention. Even if the courts tell them to take the ads down, the job is done.”