Healthy rivalry or outright disparagement? When brands tread the thin line

In the world of fast-paced advertising and marketing, each brand wants to beat rivals by any means possible, and in the process, they adopt practices like product disparagement. The tactics involve berating rival brands openly or covertly.

Last month, two brands -- Harpic and Domex -- were in the news. Reckitt approached the High Court claiming that HUL’s advertising campaign for Domex “disparages and denigrates" its product Harpic in its latest ad. Domex claimed that it was better than Reckitt's Harpic in combating odour. 

However, the court held that while it is open for an advertiser to embellish the qualities of its products and its claims, it is not open for him to claim that the goods of his competitors are bad, undesirable or inferior. “Thus, it is not open for an advertiser to say ‘my goods are better than X’s, because X’s are absolutely rubbish’. Puffery and Hyperbole to some extent have an element of untruthfulness,” the court said. 

We asked top marketers for their two cents on the topic and what separates comparative advertisement from product disparagement.  

What constitutes comparative advertising?

Comparative advertising is a great way to involve the consumer in the conversation about a brand. It confers on them the right to check out the claims of one brand over the other. There are some iconic brands that have made leveraged comparative advertising to their benefit. 

Vinod Kunj, Founder and Chief Creative Officer, Thought Blurb Communications, explains: "This used to be a game that rivals played with flair and elegance. Brand joust with each other and make fun of each other. It was never about selling more of the product. It was about building a stronger brand. Think of the Cola Wars, Audi Vs BMW Vs Mercedes, Burger King Vs McDonald's, etc.

"Closer home, we have had some great outings by TOI Vs Hindu, Britannia Vs Parle and so on. In fact, there have been times when rivals got together for a cause; for a common objective. As in the case of McDonald's and Burger King. When McDonald's announced that they will pay part of their proceeds to a children's hospital, Burger King could have just upped the ante. Instead, they decided to say, 'Please get your burger at McDonald's today.' That is maturity in terms of marketing and creating a great brand. In our business, we need to see more of that.” 

According to Ajit Narayan, CMO, Socxo, Comparative or competitive advertising is an age-old practice and nothing new. It is an established practice. As more competitors and direct competitors enter your market, you might choose to compete directly in your advertising as well. This is to get the attention of your audience and keep them researching and understanding your product better.

What is product disparagement?

When the comparative advertisement is misleading or derogatory, it is considered product disparagement.

The Complan vs Horlicks was a case of a direct competitive attack. However, the ruling was neutral: “It noted that the law allows comparative advertising as long as the use of a competitor's mark is 'honest.' The Court said that the test of honest use was an objective test which depends on whether the use is considered honest by members of a reasonable audience. In this context, the failure to point out a competitor's advantages is not necessarily dishonest, and by corollary, highlighting the advantages of the competitor's product by the advertiser in the advertisement is not a dishonest practice either."

Gaurav Arora, Co-Founder, Social Panga tells that there are multiple brands that have benefitted from this. Sebamed got all the desired attention by comparing itself with HUL's soap. It aligned itself with the market leader Dove and immediately became part of the consideration set.  But, they couldn’t get away from this, as of June 22, the Bombay High Court (Mumbai) passed on a ruling stating the Sebamed ads are disparaging and should be stopped. 

Role of the Advertising standards council of India

ASCI is a voluntary self-regulatory organisation of the advertising industry in India. It seeks to ensure that advertisements conform to its Code for Self-Regulation, which requires advertisements to be legal, decent, honest and truthful, and not hazardous or harmful while observing fairness in competition.

But do companies really care about guidelines?

Kunj thinks It's about self-governance. It's better to accept ASCI guidelines gracefully than to be censored by the government. “ASCI has 96% compliance among advertising and design companies, media agencies, and media outlets. This includes Google, FaceBook, and other digital networks. Of course, if you intend to be rude or insensitive, that is your choice, in a free society. At worst, people can deal with it in the Consumer Protection Courts,” he added.