Monday, April 18, 2011

Coke v. Pepsi- A Hypothetical “Disparaging” Scenario

A random thought crossed my mind a few days ago during the course of a conversation with my friends. The thought was in the form of an advertisement for Pepsi, which goes something like this:

There are a bunch of teenagers having dope/cocaine in a rave party at a farmhouse in Pune. Indra Nooyi, the Chairman and CEO of Pepsi Co, walks into the farmhouse and snatches the cocaine from the hands of the teenagers and thunders:

“Say No to Coke, Say Yes to Pepsi! Say No to Death, Say Yes to Life!”

Would this hypothetical commercial attract an action for commercial disparagement against Pepsi by Coca Cola? Would the use of “Coke”, given the context in which it is used in the advertisement, provide Pepsi with an adequate defense against the allegation of commercial disparagement? 

Or would a court take the view that the use of “Coke” in the commercial would inevitably lead viewers to relate the word to Pepsi’s competitor Coca Cola, and hence hold the advert as an act of disparagement? 

Is it justified to postulate that merely because Coca Cola happens to be a competitor of Pepsi Co, the use of the word “coke” to refer to cocaine, isn’t available to Pepsi Co?

I would like to know the views of our readers on the possible arguments and counter-arguments.

1 comment:

  1. IMHO Coke has a very strong claim in getting the ad off the air and probably even damages for the foll reasons:

    a)This is a case of tarnishment clearly- when coke is referenced in the scenario of a rave party, it is but evident that one is talking of cocaine.. Say No to Coke, Yes to Pepsi, while in pepsi's defence might be a say no to drugs sort of thing.. but using Coke is clearly an attempt to tarnish.. It also turns on a reminder to the rumour that coke contained cocaine.. which is a claim coke has successfully overcome.

    2) this is an instance of comparative advertising- if i am right, the norm is u can use superlatives, but not comparatives (horlicks-pediasure faster, taller ,stronger instance) here clearly pepsi is using more than a comparative.. blatantly referencing coca cola to drugs...

    3) if say no to drugs is its mantra and defence, pepsi could have well done that by other means.. for instance show a guy snorting or taking IV drugs,,, n replacing that with sipping pepsi.. or using an IVof pepsi with a get addicted sort of thing..

    4) using death and life in the analogous order also refers that what pepsi is doing is referencing cocacola to death.. which is an untenable claim w/o scientific evidence

    5) coke can easily use survey evidence to show the association that the ad reels in the mind of the viewer.. which also tilts to tarnishment...

    6) the US case whereby the Enjoy Cocacola poster was changed to Enjoy Cocaine takes the First amendment defence.. however Pepsi cannot take a hyperbole or 19(1)(a) defence because this is clear disparagement by tarnishment...

    I think pepsi shd withdraw this ad asap... their ad agency IMHO did not consider TM consequences before airing it..

    As a corollary, does the Prasar Bharati or any other organisation censor ads? if so.. what were they doing? for 2 reasons.. clear case of tarnishment and what abt social interest in airing an ad showing a rave party on???