Gandhi had rightly said:

A customer is the most important visitor on our premises. He is not dependent on us. We are dependent on him. He is not an interruption in our work - he is the purpose of it. We are not doing him a favour by serving him. He is doing us a favour by giving us the opportunity to serve him. BIRTH OF CONSUMERS DAY Considering the importance of Kennedys speech to the US Congress on this day, and the resultant law, the CI took a decision in 1982 to observe 15 March as the World Consumer Rights Day from 1983. Peculiar though it may sound, 15 March is not observed as a special day in the worlds largest and most pulsating consumer society - the US. But at home in India the Government, adopted 15 March as the National Consumers Day. INTRODUCTION WHO IS CONSUMER? An individual who buys products or services for personal use and not for manufacture or resale. A consumer is someone who can make the decision whether or not to purchase an item at the store, and someone who can be influenced by marketing and advertisements. Any time someone goes to a store and purchases a toy, shirt, beverage, or anything else, they are making that decision as a consumer. All of us are consumers of goods and services. For the purpose of the Consumer Protection Act, the word "Consumer" has been defined separately for "goods" and "services". (A) For the purpose of "goods", a consumer means a person belonging to the following categories:

One who buys or agrees to buy any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment; It includes any user of such goods other than the person who actualy buys goods and such use is made with the approval of the purchaser. Example: Wal-Mart to buy a CD

Note : A person is not a consumer if he purchases goods for commercial or resale purposes. However, the word "commercial" does not include use by consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self employment. (B) For the purpose of "services", a "consumer" means a person belonging to the following categories:

One who hires or avails of any service or services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment.

It includes any beneficiary of such service other than the one who actually hires or avails of the service for consideration and such services are availed with the approval of such person.

Examples: Eye exam, Dental check up

Responsible Consumer Think about your choices carefully Know what you are looking for in a product or service Evaluate! Influences that Affect your Choices Personal factors Beliefs, interest, curiosity Family Friends Cost Advice of sales people and Advertising

CONSUMER RIGHTS IN INDIA

Right to Safety Right to Information Right to Choose Right to be Heard Right to Redressal Right to Consumer Education In the Consumer Protection Act 1986 in India, six of the following consumer rights have been recognized. Right to Safety As stated in the Consumer Protection Act 1986, this consumer right is defined as the right to be protected against marketing of goods and services which are hazardous to life and property. Specifically significant in areas such as healthcare, food processing and pharmaceuticals, this right spans across any domain that could have a serious impact on the consumers health or well being such as Automobiles, Travel, Domestic Appliances, Housing etc. Violation of this right is almost always the cause of medical malpractice lawsuits in India. Every year, it is estimated that thousands, if not, millions of Indian citizens are killed or severely hurt by unscrupulous practices by hospitals, doctors, pharmacies and the automobile industry. Yet the Indian government, renowned for its callousness, fails to acknowledge this fact or to make a feeble attempt at maintaining statistics of these mishaps. Indian government is required to have world class product testing facilities to test drugs, cars, food, and any other consumable that could potentially be life threatening. It is not a coincidence that Tata Nano sells in India for half of what it would cost in an industrially developed country; this being a classic case of need for a cheap product outweighing the need for safety of self and family. In developed countries such as the United States, stalwart agencies oversee the safety of consumer products; the Food and Drug Administration (FDA) for food and drugs, the National Highway Traffic Safety Administration (NHTSA) for automobiles and the

Consumer Product Safety Commission (CPSC) for all other consumer products, just to name a few. This right requires each product that could potentially endanger our lives to be marketed only after sufficient and complete independent verification and validation. With respect to empowering this right completely and adequately, India is about 50 years away. Right to Information This consumer right is defined as the the right to be informed about the quality, quantity, potency, purity, standard and price of goods or services, as the case may be so as to protect the consumer against unfair trade practices in the Consumer Protection Act of 1986. In the Indian market place, consumers get consumer information through two popular, yet unreliable means, namely advertising and word of mouth. Due to this, the consumers in India seldom have accurate and complete information to assess the true value, suitability, safety or reliability of any product. Mostly we find out hidden costs, lack of suitability, safety hazards and quality problems only after we have purchased the product. Another right again trumpeted by our government on paper, this right should ideally ensure that all consumable products are labeled in a standard manner which contains the cost, the ingredients, quantity, and instructions on how to safely consume the product. Unfortunately, even the medicines in India do not follow a standard labeling convention. Unit price publishing standards need to be established for consumer market places where costs are shown in standard units such as per kilogram, or per liter. We, as consumers, should be informed in a precise yet accurate manner of the costs involved when availing a loan. For benefit to the society from this right, advertisers should be held against the product standards in the advertisements, pharmaceuticals need to disclose potential side effects about their drugs, and manufacturers should be required to publish reports from independent product testing laboratories regarding the comparison of the quality of their products with competitive products, just to name a few. Consumerdaddy is a website meant to empower the consumers with the right to information. We do not seek or expect any support from the government of India in this mission; yet, we ethically, systematically and fearlessly dissipate consumer satisfaction information to the general public in India. Without websites like Consumerdaddy.com we believe Indian citizens are about 25 years away from being fully empowered by this right. Right to Choose

Consumer Protection Act 1986 defines this right as the right to be assured, wherever possible, to have access to a variety of goods and services at competitive prices. Competition, invariably, is the best regulator of a market place. Existence of oligopolies, cartels and monopolies are counterproductive to consumerism. How often have you noticed a conglomerate of companies that lobby the government to compromise consumer rights? Our natural resources, telecommunications, liquor industry, airlines have all been controlled by a mafia at some point. Coming from a socialistic background, tolerance of monopolistic market forces are ingrained in the blood of Indian Consumers. It is not very often we can say we are going to switch the power company, when we have a blackout at home! Interestingly, even micro markets such as the fish vendors in particular cities have known to collude to drain the bargaining power of the consumers. In any size, any form, or any span, collusion of companies selling a similar type of product is unethical, less illegal. We estimate that India has about 20 years more of stride to empower our citizens fully in this right. Right to be Heard According to the Consumer Protection Act 1986, the right to be heard and to be assured that consumer's interests will receive due consideration at appropriate forums is referred to as the right to be heard. This right is supposed to empower Indian consumers to fearlessly voice their complaints and concerns against products and companies to ensure their issues are handled efficiently and expeditiously. However, to date the Government of India has not created a single outlet for the consumers to be heard or their opinions to be voiced. There are several websites that strive to do this, and the underlying mission of Consumerdaddy is to ensure that the voices of the consumers are heard by the corporate world. At the Consumerdaddy.com website, consumers can upload criticisms and file complaints. Each criticism filed will slightly lower the overall score of the product being criticized, and each complaint will be independently evaluated by an investigator from the Consumerdaddy.com website. Consumerdaddy.com gives the consumers the benefit of doubt always, in that their voice is heard over that of the company. We, at Consumerdaddy.com, strongly believe that a consumer is always right, and that customer is king. If a consumer makes an allegation about a product, the onus is on the dealer, manufacturer or supplying company to disprove that the allegation is false. In other words, the consumer is heard, and the burden of proof rests with the company. Feeble attempts have been made by the government to empower our citizens with this right, and we believe we have 10-15 years more to go on this route.

Right to Redressal The right to seek redressal against unfair trade practices or restrictive trade practices or unscrupulous exploitation of consumers is defined as the right to redressal in the Consumer Protection Act 1986. The Indian Government has been slightly more successful with respect to this right. Consumer courts such as District Consumer Disputes Redressal Forums at the district level, State Consumer Disputes Redressal Commissions and National Consumer Disputes Redressal Commissions have been established through the consumer protection act. Each of these consumer grievance redressal agencies has fiduciary and geographical jurisdictions to address consumer cases between consumers and businesses. Consumer cases less than 20 lakhs are heard in the district consumer forum, between 20 lakhs and one crore are heard in the state consumer court and cases more than one crore are heard in the national consumer court. On paper these sound nice; but hold on before you rejoice. Once started as the guardians of consumer protection and consumer rights in India, these courts have today been rendered ineffective due to bureaucratic sabotages, callousness of the government, clogged cases and decadent infrastructure. Very few of the district forums have officials appointed in a timely manner, and most of them are non-operational due to lack of funding and infrastructure. Estimates put the open legal cases in India at 20-30 million, which will approximately take 320 years to close. With the legal system in this manner compromised, consumer cases that form mere civil litigations will be pushed down the bottom of the priority list. We estimate that India is 10 years behind in effectively ensuring this right to every Indian consumer. Right to Consumer Education The right of each Indian citizen to be educated on matters related to consumer protection and about his/her rights is the last right given by the Consumer Protection Act 1986. This right simply ensures that the consumers in India have access to informational programs and materials that would enable them to make better purchasing decisions. Consumer education may mean both formal education through school and college curriculums and also consumer awareness campaigns run by both governmental and non governmental agencies (NGO).

Consumer NGOs, with little support from the Indian government, primarily undertake the ardent task of ensuring this consumer right around the country. India is 20 years away from ensuring this right empowers the common citizen consumer.

ADVERTISING
Messages designed to cause consumers to buy a product or service Companies invest a lot of money into ads to persuade you to buy their product

In India, the Code of Advertising Practice of the Advertising Standards Council of India (ASCI) has no legal status; however, it is binding on all advertisements that are displayed in India through a notification in the Official Gazette. It applies to: advertisers; advertising agencies; and advertisements that are created abroad but used in India. Any complaints against an advertisement should be addressed to the ASCI. The types of advertisement prohibited under the ASCI guidelines include advertisements which: incite people to commit a crime or promote disorder and violence or intolerance; deride any race, caste, creed or nationality; adversely affect friendly relations with a foreign state; directly or indirectly promote restricted or prohibited goods; or use particular prohibited words.

Proof Requirement
To prove that an advertisement is false, a plaintiff must prove five things: (1) a false statement of fact has been made about the advertiser's own or another person's goods, services, or commercial activity; (2) the statement either deceives or has the potential to deceive a substantial portion of its targeted audience; (3) the deception is also likely to affect

the purchasing decisions of its audience; (4) the advertising involves goods or services in interstate commerce; and (5) the deception has either resulted in or is likely to result in injury to the plaintiff. The most heavily weighed factor is the advertisement's potential to injure a customer. The injury is usually attributed to money the consumer lost through a purchase that would not have been made had the advertisement not been misleading. False statements can be defined in two ways: those that are false on their face and those that are implicitly false.

Types of False Advertising

I . Bait and Switch 2. False Price Comparison 3. Going Out of Business Sales 4. Buy One Get One Free 5. Misrepresentations 1 . Bait and Switch Bait and switch advertising is the offering of certain products or services at bargain prices with no intention of selling them as advertised. The real purpose of the bait and switch scheme is to lure consumers into a business establishment with attractive offers and then sell them other more expensive products. To accomplish this, bait and switch sellers disparage the quality of the advertised "specials" or belittle the guarantees, availability of service, or the credit terms related to the product or services offered. In some cases the advertised specials won't even be available for sale or salespersons will refuse to show them to interested consumers. Some bait and switch sellers have been known to go as far as to penalize salespersons who actually sell the advertised specials to consumers.

2. False Price Comparison Legitimate advertisers often compare a sale price to a "regular" price. Unscrupulous advertisers use falsely inflated "regular" prices in order to deceive consumers into thinking

that they are getting a bargain. There have been cases where a retail sales establishment has raised the regular price of a product and advertised it as on sale at the new higher price. 3. Going Out of Business Sales Some retail sales establishments falsely advertise that they are going out of business to deceive consumers into thinking they will be able to buy products at considerable savings. Such false sales are advertised as: "bankruptcy sales," "lost our lease," building coming down," "forced out of business," "final days," "liquidation sales," "fire sales," "quitting business," or similar names. In most cases, businesses wanting to advertise going out of business sales must first obtain a permit from the sheriff or the city in which the business is located, and the permit must be prominently displayed near the entrance to the premises. The advertisements announcing such a sale must display the permit number.

4. Buy One Get One Free In many cases, when this offer is made in an advertisement, the price of the product you pay for is inflated to cover the cost of the "free" product. In other cases, the "free" product is of low quality.

5. Misrepresentations Unscrupulous advertisers often intentionally misrepresent the characteristics, origin, uses, benefits, or qualities of products offered for sale. Used cars are advertised as "one owner" cars when they have had several owners; "late model" TV sets turn out to be 10 years old; watches are advertised as "railroad watches" when they are in fact ordinary watches of relatively low quality; "Maine lobsters" may actually have been fished from the waters of the Pacific Ocean; and medicinal preparations which are supposed to cure specific illnesses may have little or no therapeutic effectiveness.

LEGAL ASPECTS OF ADVERTISMENT

1. The Consumer Protection Act, 1986 2. The Emblems and Names (Prevention of improper use) Act, 1950 3. Trade and Merchandise Marks Act, 1958 4. Cable Television Networds (Regulation) Act, 1995 5. Monopolies and Restrictive Trade Practices Act, 1969 1. Consumer protection Act, 1986
The consumer protection Act, 1986, provides for the better protection of consumers. Unlike existing laws which are punitive or preventive in nature, the provisions of this Act are compensatory in nature. The act is intended to provide simple, speedy and inexpensive redressal to the consumers' grievances, award relief and compensation wherever appropriate to the consumer. The act has been amended in 1993 both to extend its coverage and scope and to enhance the powers of the redressal machinery.

2. The emblems and names(prevention of improper use) Act, 1950

An Act to prevent the improper use of certain emblems and names for professional and commercial purposes

A three judge bench of the Supreme Court headed by the Chief Justice of India served notice to international luxury brand Mont Blanc, on a Public Interest Litigation protesting the launch of its limited edition Mahatma Gandhi pens. The PIL has been filed by two Delhi-based lawyers, Harsh Vardhan Surana and Sandeep Singh, and have sought the court to restrain marketing and selling the pens on the ground that they are an affront to national honour and a misuse of the Mahatma's name for commercial marketing. The Petitioners argued that introducing the pen was in violation of the Emblems and Names (Prevention of Improper Use) Act, 1950 which prohibits the use of any emblem specified in the Act for a commercial or trade purpose. Despite expressing reservations, the Apex Court Bench issued notice to Mont Blanc. Earlier, a PIL was filed in the Kerala High Court regarding the same matter, and was

settled out of court. Mont Blanc released the luxury limited edition pens on September 29. The Mahatma Gandhi-241 retails at Rs. 11.39 lakhs ($23,854), and commemorates the 241-kilometre Dandi salt march, while the Mahatma Gandhi Limited Edition-3000 retails at Rs. 1.47 lakhs ($3,000). Previously a petition has been filed before the Kerala High Court on the same issue. The Government has taken a stand that the picture of Mahatma Gandhi on the nib of the pens violates the Emblems and Names (Prevention of Improper Use) Act, 1950. This issue has been raked up in the Lok Sabha too with the Minister of State for Consumer Affairs, K.V. Thomas asked to clarify the Government's stand on the issue. Mont Blanc's favorites DSK Legal may represent them in the present case. DSK Legal has represented Mont Blanc in a variety of IP disputes and previous advisory work of Month Blanc. In an ongoing dispute between Add Gel and Month Blanc, DSK's litigation partner Gopika Pant is leading the litigation team. It's to be seen whether the emblem misuse will be taken seriously in India. Yesterday, the United Arab Emirates enacted stiff laws against misuse of the national emblems. The offence will carry a year in jail and a fine upto Dirham 100,000 (Rs. 12 lakh), according to a draft law approved by the Federal National Council. However, in India, the Emblems Act imposes a maximum fine of Rs. 5,000 ($104 or 393 Dirhams). 3. Trade and Merchandise Marks Act, 1958
Ministry of Industry, Department of Industrial Development Controller General of Patents, Designs and Trade Marks Trade Marks Registry Bombay, New Delhi, Chennai, Calcutta and Ahmedabad Total classes: 42. (1-34 goods and 35-42 services) Class 35- Advertising, business management, business administration, office functions

4. The Cable Television Networks (Regulation) Act, 1995 An act to regulate the operation of cable television networks in the country and for matters connected therewith or incidental thereto. BE it

enacted by Parliament in the Forty-sixth Year of the Republic of India as follows.

This Act may be called the Cable Television Networks (Regulation) Act, 1995.

(1) It extends to the whole of India. (2) It shall be deemed to have come into force on the 29th day of September, 1994.

In this Act, unless the context otherwise requires, authorised officer means, within his local limits of jurisdiction;a District Magistrate, or (ii) (iii) a Sub-divisional Magistrate, or a Commissioner of Police,

and includes any other officer notified in the Official Gazette, by the Central Government or the State Government, to be an authorised officer for such local limits of jurisdiction as may be determined by that Government.

5. The Indecent Representation of Women (Prohibition) Act, 1986

Advertisement is the most influential and powerful medium in the commercial society. The Advertising Standards Councils Code for Self regulation defines an advertisement as a paid-for communication, addressed to the Public or a section of it, the purpose of which is to influence the opinions or behavior of those to whom it is addressed. Any communication which in the normal course would be recognized as an advertisement by the general public would be included in this definition even if it is carried free-of-charge for any reason. Advertising is an expression intended for the promotion of a product or a service or concept. The Report of EEC Committee on the Environment, Public Health and Consumer Protection defined advertising thus, the process of persuasion, using paid media, in which purchasers of goods, services or ideas sought. Its primary aim is to convince the consumer to obtain the advertisers

product/ service and/ or his specific brand. Advertising is thus a commercial message designed to influence consumer behavior. Advertising is communication. It seeks to convey information to the consumer about a product. It can take any form in any media.

Women and Advertisements: Women play a very important role in respect to Advertisements: # As Victims-I subscribe to the view that women models in most cases are exploited. # As viewers of advertisements in the media # As, endorsers which again is a dignified way of promoting a product which is usually done by a well known woman.

Use of women to promote a concept or product is going on increasing Women are used in TV commercials as weapon of persuasion. Women in many cultures make the majority of consumption decisions; hence they are important target of these advertisers.

Positive Impact of Advertisements on Women includes Consumer education, Public Service Advertisements which educates women. Advertisements brings awareness about various issues women need to know. For example: the advertisements of contraceptives inform women about safe sex. Advertisements also offer a career to women as models and fashion design. Advertisements do update women on the latest fashion trends; there by making them more stylish and elegant.But, most of the advertisements make women victims of cheap advertising techniques The representing of women in indecent ways for whatever commercial ends, is the worst thing done. It can be curbed by the following means:

A-LAWS The Indian Penal Code 1960 contains S. 292 which deals with the sale of obscene books, pamphlet, inter alia representation which shall be deemed to be lascivious or appeals to the prurient interest, which can include obscene advertisements. I am including Indian Penal Code as safety legislation to prevent the indecent representation of women in advertisements, because of one logic:

Indecent Representation of women can be obscene, which means that a law curbing obscenity can come of help. The word, obscenity as the dictionaries tell us, denotes the quality of being obscene which means offensive to modesty or decency; lewd, filthy and repulsive. It cannot be

denied that it is an important interest of society to suppress obscenity. There is, of course, some difference between obscenity and pornography in that the latter denotes writings, pictures etc. intended to arouse sexual desire while the former may include writings etc. not intended to do so but which have that tendency. Both, of course, offend against public decency and morals but pornography is obscenity in a more aggravated form In RANJIT D. UDESHI Vs STATE OF MAHARASHTRA , the test of obscenity was established. The appellant, a bookseller, sold a copy of the unexpurgated edition of Lady Chatterley's Lover". He was convicted under s. 292, Indian Penal Code, it was ruled that in judging a work, stress should not be laid upon a word here and a word there, or a passage here and a passage there. Though the work as a whole must be considered, the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort. In this connection the interests of contemporary society and particularly the influence of the impugned book on it must not be overlooked. Where, obscenity and art are mixed, art must so preponderate as to throw the obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked. It is necessary that a balance should be maintained between "freedom of speech and expression" and "public decency or morality"; but when the latter is substantially transgressed the former must give way. And in CHANDRAKANT KALYANDAS KAKODAR v. STATE OF MAHARASHTRA AND ORS, it held that there was no fixed rules to determine obscenity.The concept of obscenity would differ from country to country depending on the standards of morals of contemporary society.

The Indecent Representation of Women (Prohibition) Act, 1986: The Act punishes the indecent representation of Women , which means the depiction in any manner of the figure of a woman; her form or body or any part thereof in such way as to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals.It states that no person shall publish or cause to publish or cause to be published or arrange to take part in the publication or exhibition of any advertisement which contains indecent representation of women in any form. 'In the Act, advertisement' includes any notice,

circular, label, wrapper or other document and also includes any visible representation made by means of any light, sound, smoke or gas. The Amendment suggested by the National Commission for Women suggests to amend the definition to advertisement' includes any notice, circular, label, poster, wrapper or other document and also includes any visible representation made by means of any laser light, sound, smoke, gas, fibre, optic electronic or other media It states that no person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any. The Commission has also suggested the addition of the word Derogatory along with indecent. In Section 6 on Penalty, the words 'and with fine which may extend to two thousand rupees' shall be substituted with the words 'and with fine which may extend to ten thousand rupees' and the words 'in the event of a second or subsequent conviction with imprisonment for a term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lakh rupees' shall be substituted with the words 'in the event of second or subsequent conviction with imprisonment for a term of not less than six months but which may extend to five years and also with a fine not less than fifty thousand rupees but which may extend to five lakh rupees'. In the Kamasutra Advertisement, Milind Soman and Madhu Sapre too had faced similar mix of charges. Similar charges were raised against the Editor of Anandabazar Patrika, Aveek Sarkar, and the Publisher in a trial court in Kolkata relating to the reproduction of a nude photograph of former tennis player Boris Becker and his fiance in Sportsworld magazine, published by the group in May 1993. According to the National Crime Records Bureau claims a decrease of cases of Indecent Representation of women -decreased by 46.5% (from 2,917 in 2005 to 1,562 in 2006). While it is Andhra Pradesh that has recorded 86.2 percent of cases at in the National level under the Act.In April 2006, a Madurai court issued non-bailable warrants against Sen and Shilpa Shetty for "posing in an obscene manner" in photographs published by a Tamil newspaper. The report stated that the two actresses had failed to comply with earlier summonses for the same reason, hence the issuance of the warrants. The petitioner submitted that the paper had published "very sexy blow-ups and medium blow-ups" in its issues December 2005 and January 2006 issues, and

which allegedly violated the Indecent Representation of Women (Prohibition) Act 1986, Young Persons (Harmful Publications) Act 1956, and the Indian Penal Code Section 292 (Sale of Obscene Books). The petitioner further demanded that the images should be confiscated under the terms of the Press and Registration of Book Act 1867. 6. The Monopolies and Restrictive Trade Practices, 1984

Statutory Provisions In India:

a. The Monopolies and Restrictive Trade Practices, 1984 (herein after MRTP Act) and the Trade Marks Act, 1999 work in tandem to provide the basic structure that govern Comparative Advertising. The Trademarks Act, 1999 has incorporated the provisions related to this concept in Ss. 29(8) and 30(1). According to the statute Comparative Advertising is permissible, with certain limitations as to unfair trade practices. b. The Trade Marks Act is an attempt to balance the conflicting interests of the rights of registered trade mark owners and a compelling consumer interest in informative advertising. Section 29(8) of the Trade Marks Act provides that a registered trademark is infringed by any advertising of that trade mark if such advertising takes unfair advantage and is contrary to honest practices in industrial or commercial matters, is detrimental to its distinctive character, or is against the reputation of the trade mark. c. Section 30(1) has, however, provided an escape route for what would otherwise have been an infringing act under Section 29, if the impugned use of the mark is in accordance with honest practices in industrial or commercial matters. Honest practices- mandatory for CA:

a. Comparative advertising aims to objectively and truthfully inform the consumer, and promotes market transparency, keeping down prices and improving products by stimulating competition. Therefore, it is important to protect the interests of such competitors by not allowing

comparative advertising to cause confusion, mislead, or discredit a competitor. b. There is no definition or explanation as to what constitutes honest practices. There is a large and clear shared core concept of what constitutes honest conduct in trade, which may be applied by the courts without great difficulty and without any excessive danger of greatly diverging interpretations. c. In BMW v. Deenik , the question was whether a trader, not being an authorized dealer of BMW motor cars, was entitled to use the name BMW being a registered trademark of the BMW manufacturing company, in the context of holding itself out as having specialized expertise in servicing BMW cars. The Court held that the proprietor of the trademark is not entitled to prohibit a third party from using the mark for the purpose of informing the public that he carries out the maintenance and repair of the goods covered by that trademark, unless the mark is used in a way that may create the impression that there is a commercial connection between the other undertaking and the trademark proprietor, and in particular that the resellers business is affiliated to the trademark proprietors distribution network or that there is a special relationship between the two undertakings.

Comparative Advertising is limited by Unfair Trade practices:

a. Comparative advertising is also subject to certain other limitations contained in the definition of unfair trade practices. In 1984 the MRTP Act was amended to add a chapter on unfair trade practices. Section 36A of the MRTP Act lists several actions to be an unfair trade practice as any unfair method or unfair or deceptive practice which gives false or misleading facts disparaging the goods, services or trade of another person.

b. The object of this section is to bring honesty and truth in the relationship between the provider of the services and the consumer, and when a problem, arises as to whether a particular act can be condemned as an unfair trade practice or not, the key to solution would be to examine whether it contains a false statement and is misleading and further what is the effect of such representation on the common man. c. From the above context it may be gathered that false representation would mean an incorrect or untrue statement or expression which is designed to influence and induce a consumer to buy or engage, or use such goods or services and make such advertisements available to the members of the public.

Concept of Disparagement:

a. Section 36 A of the MRTP Act purports that unfair trade practices are those which lead to disparagement of the goods, services or trade of another person. The term disparagement has not been defined in any statute, but judicial pronouncements have adopted its dictionary meaning. As per The New International Websters' Comprehensive Dictionary, disparagement means, to speak of slightingly, undervalue, to bring discredit or dishonor upon, the act of depreciating, derogation, a condition of low estimation or valuation, a reproach, disgrace, an unjust classing or comparison with that which is of less worth, and degradation. The Concise Oxford Dictionary defines disparage as under, to bring dis-crediting or reproach upon; dishonour; lower in esteem; speak on or treat slightingly or vilify; undervalue, and deprecate. b. In the electronic media the disparaging message is conveyed to the viewer by repeatedly showing the commercial everyday thereby ensuring that the viewers get clear message as the said commercial

leaves an indelible impression in their mind. But, it must be noted that a mere opinion, which is not a statement of fact, would not attract Clause (x) of Section 36A (1). c. In the New Pepsodent v Colgate case , HLL advertised its toothpaste New Pepsodent as 102% better than the leading toothpaste. In the television advertisement, samples of saliva are taken from two boys, one who has brushed with the new Pepsodent while another has brushed with a leading toothpaste. The saliva of the leading toothpaste shows larger number of germs. While the sample was being taken from the boys, they were asked the name of the toothpaste with which they had brushed in the morning. One boy said Pepsodent, the response of the second boy was muted, however, lip movement of the boy would indicate that he was saying Colgate. Also, when the muting was done, there was a sound of the jingle used in the Colgate advertisement. According to the Commission, the word toothpaste had become synonymous with Colgate over the years and a reference to leading brand was to Colgate. Thus it became a case of Comparative Advertisement which led to the disparagement of Colgates products.

Case Study: Use of the trademark to disparage the goods of another, and the aforementioned concepts of comparative advertising have been dealt with in Pepsi Co. Inc. and Ors. v. Hindustan Coca Cola Ltd. and Anr .

a. Pepsi, the appellants filed suit against Hindustan Coca Cola and others, who were endorsing their product with the help of a commercial which shows that the lead actor asks a kid which is his favorite drink. He mutters the word "Pepsi", which can be seen from his lip movement though the same is muted. The lead actor thereafter asks the boy to taste two drinks in two different bottles covered with lid and the question asked by the lead actor is that "Bacchon Ko Konsi pasand

aayegi"? After tasting, the boy points out to one drink and say that that drink would be liked by the children because it is sweet. In his words he says. "Who meethi hain, Bacchon ko meethi cheese pasand hai". He discredited the drink which according to him has a sweet taste. He preferred the other drink which according to him tastes strong and that grown up people would prefer the same. At that point, the lead actor lifts the lid from both the bottles and the one which is said to be strong taste reveals to be "Thums Up", and one which is sweet, word "PAPPI" is written on the bottle with a globe device and the colour that of the "PEPSI". Realising that he had at the initial stage given his preference for "PEPSI" and subsequently finding it to be a drink for kids, the boy felt embarrassed. He depicts this embarrassment gesture by putting his hands on his head. b. There are other commercials by the respondents where the lead actor said "Wrong choice baby", and that the "Thums Up" is a right choice, and "Kyo Dil Maange No More" for the appellants products. c. Here the issue was whether the commercial by depicting that the boy preferred Thums Up as against "Pepsi" because Thums Up is strong drink while "Pepsi" is for children as children like sweet, amounts to disparagement or it is only a healthy competition and puffing the product of the respondents? The Delhi HC explained the concept of disparagement stating that a manufacturer is entitled to make a statement that his goods are the best and also make some statements for puffing of his goods and the same will not give a cause of action to the other traders or manufacturers of similar goods to institute proceedings as there is no disparagement or defamation or disparagement of the goods of the manufacturer in so doing. However, a manufacturer is not entitled to say that his competitors goods are bad as to puff and promote his goods, and concluded that comparative advertising cannot be permitted which discredits or denigrates the trade mark or trade name of the competitor. d. In another case, the Supreme Court was of the view, that in a democratic economy, free flow of commercial information is indispensable and advertisement is a facet of commercial speech as

public at large is benefited by the information made available through the advertisement. Thus, commercial speech is a part of Freedom of Speech and Expression guaranteed under Article 19 (1) (a) of the Indian Constitution. e. To decide the question of disparagement of anothers goods, the manner of commercial is important. Unfair trade practice can be ascertained only in the presence of false or misleading facts through scientific or technical assessment of the claims. It is not actionable if the manner is only to show ones product better or best without derogating the competitors product. Thus, Courts have taken the position that publicity and advertisement of ones product with a view to boosting sales is a legitimate market strategy.

CONSUMER PROTECTION ACT

This Act regulates the protection of the basic rights of consumers in purchasing goods and services, and in participating in other forms of acquisition of products and services on the market, including: 1. the right to the protection of the economic interests of consumers, 2. the right to the protection of life, health and property, 3. the right to efficient legal protection of consumers, 4. the right to informing and educating the consumers; 5. the right to establishing the consumers' associations aimed at protection of their interests, the right to representation and participation in the activities of the bodies dealing with issues of interest for the consumers. (2) This Act stipulates the passing of the National Programme on Consumer Protection as well as the competent bodies for the protection of consumers' rights and interests. (3)The rights of consumers may be exceptionally limited by law in order to protect the interests and safety of the Republic of Croatia, nature, environment and health without putting consumers in a Arti

Advertising Article 63 Any advertising, whether in the form of an offer to conclude an agreement or not, displayed in the business premises or delivered to the consumer in any other way, and which contains the offer for approving the consumer's loan directly or through a third person, must contain the annual interest rate, information on all other loan related costs as well as information on real annual interest.

How Do New Consumer Protection Rules Affect Advertising Regulations?

Introduction The principal objective of an advertising campaign is to inform potential customers about particular products and services in a way that will persuade customers to purchase them. Unlike other advertising techniques, such as price promotions or coupons, advertising through the media develops product awareness without giving the consumer an immediate opportunity to purchase the advertised product. The regulation of advertising is essential to protect consumer interests. Media-based advertising is regulated by a framework of legislation and self-regulatory codes of practice. This update examines the impact on this framework of the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277) and the Business Protection from Misleading Marketing Regulations 2008 (SI 2008/1276), both of which came into force on May 26 2008. The main aims of the new legislation are to simplify the United Kingdoms consumer protection legislation and to ensure the implementation in the United Kingdom of the EU Unfair Commercial Practices Directive (2005/29/EC), which aims to harmonize unfair trading laws in all EU member states, and the EU Misleading and Comparative Advertising Directive (2006/114/EC).

The new regulations have streamlined the existing legislation by repealing and replacing many of the previous provisions controlling advertising content, such as the Control of Misleading Advertisements Regulations 1988 and specific provisions of the Consumer Protection Act 1987(1) and the Trade Descriptions Act 1968.

Principal Changes The new legislation broadens the standards by which advertising and marketing practices are judged and provides for criminal penalties or fines where appropriate. Consumer Protection from Unfair Trading Practices Regulations The Consumer Protection from Unfair Trading Practices Regulations prohibit unfair commercial practices and identify misleading and aggressive practices as forms of unfair practice. A 'commercial practice' is deemed to include: [an] act, omission, course of conduct, representation or commercial communication (including advertising and marketing) by a trader, which is directly connected with the promotion, sale or supply of a product to or from consumers, whether occurring before, during or after a commercial transaction (if any) in relation to a product. In assessing whether an advertisement is an unfair commercial practice under the regulations, the advertisement must be considered from the point of view of the average consumer or, where an advertisement is aimed at a group of consumers, the average member of that group. Guidance is given on the attributes that such an average consumer is deemed to possess. The new regulations set out a general prohibition which provides that a commercial practice, such as an advertisement, will be deemed unfair if it contravenes the requirements of

professional diligence (ie, the standards expected of a trader in the relevant market) and impairs the average consumers ability to make an informed transactional decision in relation to a product. This general prohibition is intended to act as a safety net where a commercial practice is unfair, but does not constitute one of the specific offences under the regulations. A trader will be guilty of an offence under this general prohibition if shown to have engaged knowingly or recklessly in such a practice. In addition, an advertisement is unfair if it:

involves a misleading action or misleading omission; is aggressive; or is a commercial practice listed in Schedule 1 of the regulations.

An advertisement will be deemed to constitute a 'misleading action' if it: (i) contains false product information or a deceptive presentation of the product which deceives the average consumer (causing him or her to make a transactional decision that he or she otherwise might not have made) in relation to factors such as the nature, main characteristics or price of a product; or (ii) markets a product in a way that creates confusion with a competitor's product. An advertisement is also misleading and therefore unfair if the trader fails to comply with an applicable code of conduct, such as the Committee of Advertising Practice codes. An advertisement will be deemed to contain a 'misleading omission' if it causes or is likely to cause the average consumer to make a transactional decision that he or she would not otherwise have made because it:

omits or hides material information; provides material information in an unclear or ambiguous manner; or fails to identify the traders commercial intent.

Business Protection from Misleading Marketing Regulations The Business Protection from Misleading Marketing Regulations govern business-to-business advertising and include a prohibition in relation to misleading advertising which resembles the provisions on unfair commercial practices in the consumer-focused regulations. Following the repeal of the Control of Misleading Advertisements Regulations 1988, the new business regulations govern comparative advertising (ie, advertising which identifies a competitor or competitors product) and have broadened the ambit of illicit comparative

advertisements, as they cover circumstances in which a consumer as well as another trader could be deemed to have been misled. Impact on Codes of Practice In the United Kingdom, the self-regulatory regime for the advertising industry distinguishes between advertising by way of broadcast media (ie, television and radio) and non-broadcast media (eg, newspapers, posters and cinema and video commercials). Under the Communications Act 2003, the Office of Communications (OFCOM) has a statutory duty to maintain standards in relation to broadcast media. OFCOM has delegated the regulation of broadcast advertising to the Advertising Standards Authority (ASA). The ASAs broadcast arm, the Broadcast Committee of Advertising Practice (BCAP), operates and enforces the Radio Advertising Standards Code and the Television Advertising Standards Code, known as the BCAP codes. These codes specifically regulate all advertising on television channels and radio stations licensed by OFCOM, including teleshopping channels and additional television services (eg, television text services). The BCAP codes require that advertisements comply with the law and that broadcasters comply with the rules of the relevant code, which must promote compliance with the law by reflecting legal requirements that are especially relevant to advertising. BCAP carried out a consultation in July 2008 on proposed changes to bring the codes entirely into line with the new requirements set out in the Consumer Protection from Unfair Trading Practices Regulations. The non-broadcast arm of the ASA, the Committee of Advertising Practice, enforces the selfregulatory code of conduct for the non-broadcast advertising industry, known as the British Code of Advertising, Sales Promotion and Direct Marketing, or CAP Code. The CAP code, which is written by the industry through the committee, is based on International Chamber of Commerce codes and has been updated to reflect the requirements of the new consumer regulations. The latest version was published on June 24 2008 and the fully revised BCAP codes will be published in 2009.

How to prepare a notice

The notice may be prepared in the style given below, and sent by registered acknowledgement-due post, courier, fax. The complainant should retain the proof of posting. Dated: dd-mm-yyyy The Managing Director ABC Engineering Works Gala No. 22, XYZ Compound Gandhi Nagar Mumbai 400602 SUB: NOTICE BEFORE FILING CONSUMER COMPLAINT Dear Sir, 1) Give details of your purchased of product or service (cash memo number and date). 2) Give information about the warranty or guarantee promised to you at the time of purchase. 3) Give details of the deficiency in the product or service. 4) List the problems you are facing due to this deficiency.

5) Give the details about your efforts to inform about this grievance in the past to which the party has not responded. 6) Give a time limit of at least 15 to 30 days to settle your grievance by asking for refund of full amount with suitable interest (18%), or replacement of the product along with suitable compensation, else you will file a complaint with the Consumer Court as you are protected under the Consumer Protection Act of 1986. 7) Inform that the consumer complaint will be at his cost and expenses, and you will seek compensation for the mental agony caused due to his deficiency in services. Yours truly, Your signature, name, and address Please note: If you are a member of ICRPC, your notice will be sent to the party without any cost. Get membership today to get benefits.

How to serve notice to the opposite party

The notice can be served to the opposite party through following modes: - Registered acknowledgement due post - Certificate of posting - Courier - Fax transmission - Hand delivery Please note: You should retain the proof of posting (also called proof of service) with you. You may be required to submit this in the court.

General Procedure of Consumer Complaint

1. Send a notice to the Opposite Party giving him time limit to settle your grievance. 2. Prepare the consumer complaint in the required format (as also given in this web-site) 3. Get the complaint affidavit notarized through a notary. 4. Make required number of photocopies after notarizing. 5. Prepare a bank draft from a nationalized bank to pay court fee. 6. Submit the complaint and court fee to the receiving clerk in the consumer court who will give you the date for admission hearing and complaint reference number number. 7. On admission hearing, you would be informed whether your case is fit for acceptance or not. If accepted, you will be given the date for next hearing. 8. The court will send a notice with your complaint copy to the opposite party seeking reply within 30 days, and asking him to attend the hearing. 9. The hearings will continue till the matter is decided. 10. The courts final order will be sent to all the parties by registered post.

Where to file consumer complaint

Consumer complaint can be filed in any of the following courts:

District Consumer Disputes Redressal Forum (DCDRF) State Consumer Disputes Redressal Commission (SCDRC) National Conumer Disputes Redressal Commission (NCDRC)

The choice of court will depend on the amount of transaction and relief you seek and the location where the cause of action arises. If transaction and relief is Rs. 20 Lakhs or below, case is filed in DCDRF If amount is more than Rs. 20 Lakhs but below Rs. 1 Crore, case is filed in SCDRC If amount is Rs. 1 Crore and above, case is filed at NCDRC The case is filed in the city / state where the Opposite Party resides, has registered office, branch, or works for gain. The case can also be filed in the city / state where the cause of action has occurred.

Limitation - time limit to file complaint

The complaint should be filed within 2 years from the date of cause of action.

Appeals are require to be filed within 30 days from the date of receipt of the court's order.

Consumer Court Fee

(Ammended on 1-4-2004) Central Govt, New Delhi has amended its rule, being Consumer Protection Rule 1987, fixing the filing fee payable in Consumer Dispute to be filed before the Consumer forum as per the

recent amendment to Section 12(2) of the CPA 1987, which is as follows; Value of goods, Service & Compensation Claimed determine the amount of fee payable

. DISTRICT FORUM (w.e.f. 10-2-2005) VALUE OF GOODS AND COMPENSATION Less than Rs. one lakh Rs. one lakh and above, but less than Rs. five lakh Rs. five lakh and above, but less than Rs. ten lakh Rs. ten lakh and above AMOUNT PAYABLE Rs. 100 Rs. 200 Rs. 400 Rs. 500

The above amount is to be deposited at the time of filing the Complaint . The payment should be through a Nationalised Bank Demand Draft duly crossed, drawn in favour of "President, Consumer Disputes Redressal Forum, (district name)". STATE COMMISSION (w.e.f. 10-2-2005) VALUE OF GOODS AND COMPENSATION Rs. twenty lakh and above, but less than Rs. 50 lakh Rs. 50 lakh and above, but less than Rs. 1 crore AMOUNT PAYABLE Rs. 2000 Rs. 4000

The above amount is to be deposited at the time of filing the Complaint . The payment should be through a Nationalised Bank Demand Draft duly crossed, drawn in favour of "Registrar, State Consumer Disputes Redressal Commission, ___________ State". NATIONAL COMMISSION (w.e.f. 10-2-2005) VALUE OF GOODS AND COMPENSATION Above Rs. 1 crore AMOUNT PAYABLE Rs. 5000

The above amount is to be deposited at the time of filing the Complaint . The payment should be through a Nationalised Bank Demand Draft duly crossed, drawn in favour of "Registrar, National Consumer Disputes Redressal Commission".

Consumer complaint format

BEFORE THE HONBLE NATIONAL / STATE / DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION/FORUM AT ( CITY ). COMPLAINT UNDER CONSUMER PROTECTION ACT, 1986. IN THE MATTER OF : (Name and address of complainant) .................... COMPLAINANT VERSUS (Name and address of the accused) .................... OPPOSITE PARTY INTRODUCTION: A brief paragraph about the complainant explaining the name, residence address and occupation of the complainant. A brief paragraph about name, address and occupation of the opposite party. RESPECTFULLY SHOWETH: 1. Description of the deal and services promised by the opposite parties for the value paid by the complainant. 2. Description of the advertisements given by the opposite parties which attracted the complainant to purchase the commodity and services.

TRANSACTION : Details of the price of goods and services. Details of the bill/invoice (bill number and date, item and amount) Details of payments made by complainant (cheque number/cash, etc.) NATURE OF COMPLAINT: (select from list or write as required) 1. Misleading advertisements and false representation. 2. Cheating by giving false promises. 3. Deficiency in after sales service or not abiding by warranty clause. 4. Harassment by the opposite party. 5. Not delivering the goods and services for which payment is made. 6. Charging excess amount. 7. Any other factors that affected the consumer. OTHER EVIDENCES OF SUPPORT OF COMPLAINT: Copy of advertisement and catalogue that promised the concerned goods and services. Copy of bill as evidence of purchase. Other documents such as agreement copies, bounced cheques, opposite parties' letters. Copy of letters sent to the opposite party to request for rectification of fault and settlement of the grievance. JURISDICTION:

(Select one) As the total amount involved is more than Rupees 1 crore, the complaint is being filed with the Hon'ble National Consumer Disputes Redressal Commission. OR As the total amount involved is more than Rupees 20 lakhs and less than 1 crore, the complaint is being filed with the Hon'ble State Consumer Disputes Redressal Commission. OR As the total amount involved is less than Rupees 20 lakhs, the complaint is being filed with the Hon'ble District Consumer Disputes Redressal Forum. PRAYER: The complainant therefore prays :i) relief be granted to the complainant as demanded herein. ii) that such orders be passed as the Hon'ble Consumer Forum may deem fit in the circumstances of the case. iii) that the accused should be punished severely so that culprits of similar kind would be afraid to indulge in such criminal activities. iv) mention any other statement of prayer you wish to state. PLACE : DATED : Signature NAME OF THE COMPLAINANT

VERIFICATION I (name of complainant), resident of (residential address) hereby declare that I have not misrepresented any facts nor have tried to hide any information in my above complaint. All the facts mentioned herein are true to the best of my knowledge.

Name & signature of the complainant Please note: The affidavit should be notarized before further copies of complaint set are made for submission. Arrangement of the complaint papers: All papers to be kept in paper file in following order: 1. Complaint 2. Affidavit 3. List of documents 4. Documents 5. Vakalatnama 6. Application for injunction (if any) 7. Application for condonation of delay (if any) Page numbers to be written on lower right corner. Deposit the complaint file at the consumer court along with appropriate court fee.

________________________________________________________________ 10 TIPS TO DEVELOP YOUR ADVERTISING

1. Develop a detailed marketing plan or have one developed for you. Without a detailed travel plan and a map you wouldnt get very far for very long on an around the world trip. Many businesses place advertising without a clear-cut plan. The most expensive advertising is advertising that doesnt work. You can reduce your advertising costs and advertising waste by proper planning.

Professionals do their homework and develop marketing plans that provide them with a comprehensive understanding of their businesses and industries. A marketing plan will provide you with a travel plan and a map. Areas covered in a marketing plan include: An internal/external situational analysis, Positioning, Core Competencies, Pricing, Distribution, Strategies and Tactics, Market Research, Implementation Schedules, Evaluation Strategies, and more. A professional marketing plan pays off in great dividends by eliminating wasted advertising and marketing efforts and unnecessary costs. Call on experts to create and develop your marketing plan. 2. Make your advertising decisions based upon research and a formal marketing plan. Media reps make their living by selling you more advertising. Time and again you will receive calls regarding special deals, special sections, time limited offers, etc. These will only have value to you if you know what you are doing. It is best to negotiate deals and specials in advance of placing your advertising. Your marketing plan and research will help you identify and target your best audiences. It will also help you to determine the best vehicles to reach your best audiences. Make sure to focus your message on what is important to your audience, and not yourself. Potential customers rarely care about whats important to you. They only care about what you can do for them. Cost per thousand (CPM), frequency, readership, demographics, BPA statements, and other terms need to be familiar to you. Without this information youll be taking a shot in the dark. Reputable media providers will be more than willing to provide you with data on themselves and their audiences. Your marketing plan and your strategies will help you to determine if a particular media or media provider is right for you. 3. Plan your advertising calendar several months in advance. Failure to plan advertising in advance wastes a lot of your money. Rush charges, poor vehicle choices, rate increases, poor creative and poor copy are common results of failing to plan in advance.

We didnt have enough time, We were under the gun to get this placed, are common phrases heard under rushed circumstances. Take a blank calendar and fill in the days, months or quarters to advertise to your target markets. Figure out the number of ad insertions that will make sense and negotiate a contract with the various media suppliers. 4. Test your copy and your ads. Only by trial and error will you be able to set a baseline as to the best response rates for your ads and copy. It is very important to maximize response for the amount of dollars spent. Sometimes re-phrasing copy or adjusting ad layouts can mean the difference between an average response and a great response. You need to find out what works best for you. After you find this out, youll want to stay the course. 5. Hire professionals to handle your advertising. When your sick, call a doctor! When you have legal problems, call a lawyer! When you need to advertise, hire an ad agency . You need to concentrate your time and efforts in areas of your business that youre proficient in. Advertising is the one area where people try to tell the professionals what to do and how to do it. You wouldnt tell a doctor what treatment to prescribe, just like you wouldnt tell your lawyer how to defend you. You can lose a lot of time and money while trying to act as your own ad agency. Agencies are experts. They charge for their time and experience and have one goal in mind: To get the best results for their clients in order to keep those clients. Many times ads done by amateurs lack the true market drivers of an audience. An agency will research your market and your audience to learn the real issues concerning your product or services.

6. Learn how to develop and use creative briefs when dealing with agencies. Time is money when it comes to an agencys billable hours. The more upfront information that you provide to your ad agency the more money you will save. Also, the more detail you have in your creative brief the more effective your advertising will be. A creative brief is a summary of all of the factors that will affect your advertising from your companys current business situation, your competitive situation, through your targeted audiences characteristics and buying habits. Even if you choose not to use an agency, a creative brief is a good exercise to go through to make sure that everyone in your creative process is on the same page. You will definitely get better results and save on wasted creative designs by using a creative brief. 7. Save copies of all of your ads, press releases, and printed collateral. Make sure to provide as much information as possible to your agency. In order to write the most persuasive copy and to design the most effective ads, it is important for your agency to know what has worked in the past and what hasnt. There is nothing wrong with using elements or information from previously successful ads. Your advertising should have some consistent elements from your printed collateral and vice versa. 8. Make sure that your advertising message focuses on what is important for your audience and not what is important to you. Saving money, gaining marketshare, pre-empting competition, saving time, peace of mind, and related desires are typical of what your audience is looking for. Your target audience will typically be more concerned about what you can do for them, as opposed to what you do. Speak in your audiences language and in a way that they can understand. Big words and words that arent easily understood should be avoided. Your job is to sell your audience on using your product or services. Too often non-sales people write beautiful and witty prose that doesnt get a second look from your audience before they pass it over or discard it into the trash.

9. Avoid misleading or dishonest copy in hopes of converting duped readers into using your products or services. Honesty and integrity are key to repeat sales and repeat business. If you have to trick your audience to get their attention, you will have a very hard time keeping their attention. 10. Avoid using committees to approve your advertising. Putting together a roomful of experts on just about any subject is a surefire way to get nothing accomplished. Many great ads are killed by committees. And many bad ads are the direct result of committees. A lot of time and money can be wasted by committees due to: unnecessary changes, rewrites, and wasting time in meetings. Every change, every re-write, and every meeting means billable hours for your agency. A single point of contact is usually the best way to keep unnecessary changes and meetings to a minimum. If you must meet as a group, do so in advance and work out any potential internal problems before meeting with your agency. When you finally meet with your agency you should be more productive.

Consumer
DO'S AND DON'TS

Do shop around to make your own price comparisons Do whenever possible check out all advertising claims before making purchases Do ask for a "rain check" when advertised products are not available for sale Do ask to see a permit for a going-out-of business sale before buying at such sales Do be on your guard when you see advertisements offering anything "free" Don't allow yourself to be "switched" from a low-priced "bait" product to a more expensive alternative Do report all cases of false advertising to the Department of Consumer Affairs

THREE MAIN ACTS THAT CONSTITUTE FALSE ADVERTISING

Besides advertising that is either false on its face or implicitly false, today's regulations define three main acts that constitute false advertising: failure to disclose, flawed and insignificant research, and product disparagement. Failure to Disclose It is considered false advertising under the Lanham Act if a representation is "untrue as a result of the failure to disclose a material fact." Therefore, false advertising can come from both misstatements and partially correct statements that are misleading because they do not disclose something the consumer should know. The Trademark Law Revision Act of 1988 (15 U.S.C.A. 1051 et seq.), which added several amendments to the Lanham Act, left the creation of the line between sufficient and insufficient disclosure to the discretion of the courts. American Home Products Corp. v. Johnson & Johnson, 654 F. Supp. 568, S.D.N.Y. 1987, is an example of how the courts use their discretion in determining when a disclosure is insufficient. In this case, Johnson and Johnson was advertising a drug by comparing its side effects to those of a similar American Home Products drug, leaving out a few of its own side effects in the process. Although the Lanham Act does not require full disclosure, the court held the defendant to a higher standard and ruled the advertisement misleading because of the potential health risks it posed to consumers. Flawed and Insignificant Research Advertisements based on flawed and insignificant research are defined under section 43(a) of the Lanham Act as "representations found to be unsupported by accepted authority or research or which are contradicted by prevailing author- ity or research." These advertisements are false on their face. Alpo Pet Foods v. Ralston Purina Co., 913 F.2d 958 (D.C. Cir. 1990), shows how basing advertising claims on statistically insignificant test results provides sufficient grounds for a false advertising claim. In this case, the Ralston Purina Company claimed that its dog food was beneficial for dogs with canine hip dysplasia, demonstrating the claims with studies and tests. Alpo Pet Foods brought a claim of false advertising against Purina, saying that the test

results could not support the claims made in the advertisements. Upon looking at the evidence and the way the tests were conducted by Purina, the court ruled not only that the test results were insignificant but also that the methods used to conduct the tests were inadequate and the results could therefore not support Purina's claims. Product Disparagement Product disparagement involves discrediting a competitor's product. The 1988 amendment to the Lanham Act extends claims for false advertising to misrepresentations about another's products. Trademark Infringement A topic similar in form to product disparagement is trademark infringement, which is listed in section 32(1) of the Lanham Act. This section states that anyone who shall, without the consent of the registrant (a) use in commerce any reproduction, counterfeit, copy or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution or advertising of any goods or services or in connection with which such use is likely to cause confusion, or cause mistake, or to deceive shall be liable in a civil action by the registrant. The confusion or deceit involved does not have to be in regard to the source of the product; the only requirement is that the public thinks the trademark's owner either sponsored or approved the use of the trademark. The Polaroid Test For purposes of determining whether there is a likelihood of confusion under the Lanham Act, the courts use the Polaroid test, which includes eight factors established in Polaroid Corp. v. Polara Electronics Corp., 287 F. 2d 492 (2nd Cir. 1961). They are the strength of the plaintiff's mark, similarity of uses, proximity of the products, likelihood that the prior owner will expand into the domain of the other, actual confusion, defendant's good or bad faith in using the plaintiff's mark, quality of the junior user's product, and sophistication of consumers. These eight factors do not all have to be satisfied to prove a case; the major factor the courts focus on is the potential to confuse consumers.

The Polaroid test is for cases that involve commercial exploitation. When a case raises First Amendment concerns, the Polaroid test can become awkward. False advertising cases that raise First Amendment concerns most often involve the use of parody. Parody For parody cases, a balancing test that is more useful than the Polaroid test was established by Cliffs Notes v. Bantam Doubleday Dell Publishing Group, 886 F.2d 490 (2nd Cir. 1989). In Cliffs Notes, the court held that Bantam's production of Spy Notes, which was a parody of Cliffs Notes study guides, was not a violation of the Lanham Act, because it conveyed not only that it was the original but also that it was not the original and was instead a parody. The balancing test used by the court in Cliffs Notes basically requires that a parody have two simultaneous, contradictory messages in order to be protected under the First Amendment. If a parody does not have both messages, it is likely to confuse the consumers, therefore opening itself up to false advertising claims. Another claim involving parody is the 1995 case of Hormel Foods Corp. v. Jim Henson Productions, 73 F.3d 497 (2nd Cir. 1996). In this case, Hormel brought Jim Henson Productions to court for trademark infringement and false advertising under the Lanham Act. At the time the case was initiated, Henson was producing the movie Muppet Treasure Island with a new character: an exotic wild boar named Spa'am. Henson's intention was to make the audience laugh at the intended parody between the Muppet's wild boar and Hormel's tame luncheon meat. Hormel's claims of false advertising and trademark infringement under the Lanham Act and its common-law claims of trademark dilution and deceptive practices were all denied by the court for several reasons, the main one being that Henson had clearly, in all his advertising, identified Spa'am as a character from a Muppet motion picture. This usage was not confusing under the Polaroid test and therefore was not a solid basis for a false advertising or trademark infringement claim. Henson's usage also satisfied the balancing test requirements set up by Cliffs Notes.

Remedies for False Advertising

Had Hormel won its claim against Henson, three remedies would have been available to it: injunctive relief, corrective advertising, and damages. Injunctive Relief Injunctive relief is granted by the courts upon the satisfaction of two requirements. First, a plaintiff must demonstrate a "likelihood of deception or confusion on the part of the buying public caused by a product's false or misleading description or advertising" (Alpo). Second, a plaintiff must demonstrate that an "irreparable harm" has been inflicted, even if such harm is a decrease in sales that cannot be completely attributed to a defendant's false advertising. It is virtually impossible to prove that sales can or will be damaged; therefore, the plaintiff only has to establish that there exists a causal relationship between a decline in its sales and a competitor's false advertising. Furthermore, if a competitor specifically names the plaintiff's product in a false or misleading advertisement, the harm will be presumed (McNeilab, Inc. v. American Home Products Corp., 848 F.2d 34 [2nd. Cir. 1988]). Corrective Advertising Corrective advertising can be ruled in two different ways. First, and most commonly, the court can require a defendant to launch a corrective advertising campaign and to make an affirmative, correcting statement in that campaign. For example, in Alpo, the court required Purina to distribute a corrective release to all of those who had received the initial, false information. Second, the courts can award a plaintiff monetary damages so that the plaintiff can conduct a corrective advertising campaign to counter the defendant's false advertisements. For example, in U-Haul International v. Jartran, Inc., 793 F.2d 1034 (9th Cir. 1986), the plaintiff, U-Haul International, was awarded $13.6 million the cost of its corrective advertising campaign. Damages To collect damages, the plaintiff generally has to show either that some consumers were actually deceived or that the defendant used the false advertising in bad faith. Four types of damages are awarded for false advertising: profits the plaintiff loses when sales are diverted

to the false advertiser; profits lost by the plaintiff on sales made at prices reduced as a demonstrated result of the false advertising; the cost of any advertising that actually and reasonably responds to the defendant's offending advertisements; and quantifiable harm to the plaintiff's good will to the extent that complete and corrective advertising has not repaired that harm (Alpo).

CASE STUDY
March 13: In yet another case of a technology firm going bust, Trinity Technologies downed its shutters on its trainees after recruiting them with big promises of getting them jobs abroad. The firm had allegedly collected several lakhs of rupees as commission to get them the overseas jobs. Around 350 persons approached the city police and lodged a complaint against Trinity Technologies located at Rajamandapam in Velachery stating that the firm had recruited several people with computer software knowledge and promised them highly paid overseas jobs in America, Australia and London. We were made to undergo a training for three months so we trusted them and gave a commission amount thinking that they would give us good placements after the training, said Jinesh, a complainant. The company that had branches in Puducherry, Cuddalore and other places reportedly promised them attractive salaries ranging from Rs 25,000 to several lakhs and recruited trainees. They were also promised a stipend amount during the training period, which they never received. Under the pretext of sending them abroad soon, the proprietors collected cash Rs 10,000 from all the trainees as a commission amount. However, after the completion of the training period, there was no word about the jobs from the firm. So the trainees approached the office in Velachery where they were asked to contact their branch office in Alwarpet. Much to the horror of the complainants, the office in Alwarpet remained shut and enquiries revealed that the firm owners had gone absconding. The Velachery police have registered a case and are on the lookout for the offenders.