India: Comparative Advertising: How Far Can One Go?

Last Updated: 4 February 2015
Article by Zoya Nafis

In today's world when wide range of products and brands eagerly look for consumer's attention, advertisements become critical in determining product's future prospects. In the race of promoting one's own product lot many producers adopt different styles of advertising their product to attract consumers. Sometimes such advertising can fall between the thin line of fair and unfair trade practices and can cause legal consequences. Comparative advertising is one such way. Comparative advertising is a practice where a producer while advertising his product compares it with the product of the competitor by reference or by any representation of competitor's product. It may highlight either the similarities in the two products or even differences. The producer uses the products of its competitor as a standard or benchmark and claims to exceed it.

Comparative advertising displays a comparison of two different brands on numbered variants like price, quality by referring the alternative brand by name, visual illustrations or other distinctive attributes. Advertisers employ this technique to increase their visibility in the market and to promote their product.

The debate in regard to the jurisprudential justification of comparative advertising is always open. Proponents of comparative advertising consider it to be a positive thing in the world of advertising. They think it is not misleading rather promotes healthy competition. It only compares goods or services meeting the same needs or intended for the same purpose. As per their view comparative advertising does not create confusion in the market place between the advertiser and a competitor. However the opponents of comparative advertising believe that these kinds of practices hamper the reputation of goods of the competitor. They argue that the major objective behind comparative advertising is to gain unfair advantage at the cost of competitor's goodwill.

Legal Provisions

Use of anybody else's trademark in any advertisement becomes an illegal act if it affects the reputation and goodwill of the trademark. Additionally comparative advertising can also lead to disparagement of goods. Disparagement of goods is as such not defined in the statute but it can be understood as an untrue or misleading statement about a competitor's goods made with the purpose of persuading consumers not to buy the product. Such acts can attract serious legal liabilities.

Few provisions under the Trademarks Law come into picture when any comparative advertising is done. The same is also checked under provisions relating to unfair trade practices.

Section 29(8) of Trademarks Act, 1999 says that,

A registered trade mark is infringed by any advertising of that trade mark if such advertising:

(a) takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or

(b) is detrimental to its distinctive character; or

(c) is against the reputation of the trade mark.

This provision of the Trade Marks Act quite clearly mentions that if an act while advertising a particular mark is done to take unfair advantage of another mark, or is detrimental to the very distinct character of the other mark and is also against the reputation of the trade mark, then such act is an infringement and necessary action can be taken against the infringer. One cannot use the mark of another for his own profit.

Section 30 (1) of Trademarks Act, 1999 justifies comparative advertisement saying:

(1) Nothing in section 29 shall be construed as preventing the use of a registered trade mark by any person for the purposes of identifying goods or services as those of the proprietor provided the use--

(a) is in accordance with honest practices in industrial or commercial matters, and

(b) is not such as to take unfair advantage of or be detrimental to the distinctive character or repute of the trade mark.

This provision of Trade Mark Act justifies comparative advertising authorising every person to use a registered trade mark for the purpose of identifying goods or services of the competitor but such use must only be done in accordance with the honest and fair trade practices. There should not be any mala fide intent to gain advantage of competitor's goodwill behind such use.

Conclusion

Comparative advertising is legal to the extent where it does not hamper the reputation of competitor's mark and is in accordance with the honest practices in industrial matters. A person while advertising his goods can compare the advantages of his goods over the goods of his competitor, but one cannot say that his competitor's goods are bad as this may lead to disparagement of goods of his competitor. A person cannot use any false or misleading statement while promoting his goods.

Advertising Standards Council of India has specified the certain norms or guidelines which should be kept in mind while promoting their goods through ads in its Code of Conduct, 1985. The guidelines states as follows:

  1. The producer must only make honest representation in the ads;
  2. The ads must not be offensive in any way to the general public;
  3. Ads must not be used for the promotions of products, hazardous or harmful to society or to individuals particularly minors, to a degree unacceptable to society at large;
  4. Ads must not in any way hamper competition.

Few points of caution are given by the High Courts also in the same regard in order to raise awareness among the producers of their rights and limitations allowing them to prevent all kind of legal liabilities.

The Delhi High Court in Reckitt & Coleman of India v. Kiwi T.T.K.1, explained the concept of disparagement in regard to comparative advertising, 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 competitor's 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.

There is no specific legislative mechanism regulating comparative advertising in India therefore the precedents set by various courts are followed while adjudging such matters. Though the Courts rule in favour of liberty to advertise but do not hesitate in granting injunctions and imposing damages against infringers.

[1996 PTC (193) T 399]

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Zoya Nafis
Similar Articles
Relevancy Powered by MondaqAI
S.S. Rana & Co. Advocates
Khurana and Khurana
Singh & Associates
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
S.S. Rana & Co. Advocates
Khurana and Khurana
Singh & Associates
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions