Legal framework on comparative advertising in the European Union, United States and India – a contemplative study

In any society, each individual acts in a manner so as to achieve his individual interests. When every individual acts in such a manner, there is bound to arise certain conflict of interests, which are to be resolved by law. Law therefore seeks to regulate the extent to which each individual can act in pursuit of his interests to increase the effective fulfillment of interests by each individual. Advertising has been with us in one form of another for the past 5000 years1. It plays a significant role in today’s economy and its presence in both print and electronic formats is likely to continue. One of the essential functions of advertising has been to persuade potential consumers that a particular product is superior to competing products. In today’s market, they frequently attempt the task not just by saying ‘our product is good’, but by saying ‘our product is better than the others’2– which is the basic concept behind comparative advertising. Comparative advertising is defined as advertising that “identifies the competition for the purpose of claiming superiority or enhancing perceptions of the sponsor’s brand”, as opposed to advertising that promotes one’s product solely on its own merits.3 The comparison may be of a specific attribute of the product, such as price or taste, or it may be a general, all- encompassing comparison. This type of advertising, i.e., taking the competitor head-on and comparing the respective products, to show the advertiser’s superiority, is one of the most controversial areas in advertising today. This becomes problematic essentially because advertising is not always truthful. Sometimes it relies on misleading claims and sometimes it engages in deceptive advertising to sell products.