India: Defamation And Comparative Advertisement


"Defamation is the publication of a statement which reflects on a person's reputation and tends to lower him in the estimation of the right-thinking members of society generally or tends to make them shun or avoid him2"

According to the above, defamation clearly takes a broader aspect as it takes into account the two main forms of separate torts in respect to Defamation which isLibel and Slander. The former being generally more favourable to the claimant as it is actionable and the injury will be presumed. In cases of advertisements, the former is largely in effect.

In any case of libel or slander, there needs to be the following elements present3

1. The statement must be defamatory.

2. It must refer to the claimant, i.e. identify him.

3. It must be published, i.e. communicated to at least one person other than the claimant.


Advertisement by nature is a form of communication to a large public. It takes into account many means through which message can be reached out to public at large. Its desired result can be shown by the behaviour of the audience or a specified group. Its main objective is to promote a certain type of commodity and its usage, by doing so the driving force in the audience is created.

Advertisement and defamation per se deals with defamation as a tort which undermines the defendant's good/company or reputation in relation to an advertisement which is created. The competitive market takes help of advertisements to give an edge over the other goods. In this process, a particular company might defame the others, as to increase its own market value.


In Godrej Sara Lee Ltd. v. Reckitt Benckiser (I) Ltd. (2006)4 . Justice A Sikri. observed that,

"Development of law on the Comparative Advertisement in this country is a recent phenomenon though abundance of judgments of the courts in England and United States of America are available. Comparative advertising is advertisement where a party advertises his goods or services by comparing them with goods and services of another party. This is generally done by either projecting that the advertiser's product is of same or superior quality to that of the compared product or by denigrating the quality of the compared product. There is an underlying assumption that the comparative advertising benefits the consumer as the consumer comes to know of the two products and their comparative features/merits. New or unknown brands benefit most from comparative advertising because of the potential for transfer of the intangible values associated with the compared brand with or to the new brand. Comparative advertising has become more widespread, particularly in fiercely competitive markets."

In a recent Madras High Court case, wherein Justice Banumathi opined that "comparative advertisement at present involved a balancing of interests of advertisers in promoting their products on one hand and the interest of those who might be damaged by competitor's attacks on their products on the other5."

Moreover five principles which have acted as a reference for the future cases as well were laid down by the court to decide as to whether a party is entitled to an injunction or not, these are:

"(I) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue.

(II) He can also say that my goods are better than his competitor's goods even though such statement is untrue.

(III) For the purpose of saying that his goods are the best in the world or his goods are better than his competitors' he can even compare the advantages of his goods over the goods of others.

(IV) He, however, cannot while saying his goods are better than his competitors', say that his competitors' goods are bad. If he says so, he really slanders the goods off his competitors. In other words he defames his competitors and their goods, which is not permissible.

(V) If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the court is also competent to grant an order of injunction restraining repetition of such defamation.

In view of the above principles the judgement passed by S. Mahajan in the case of Reckitt & Colman of India Ltd. Vs. Kiwi T.T.K Ltd6. was,

"I have already held above that though a comparative advertisement is admissible, the same should not in any manner be intended to disparage or defame the product of the competitor. I am, in any case, not going into the question to what is the effect of the issue of other advertisements of the similar nature by the manufacturer of other products. Prima facie, I am of the opinion that after the removal of the red blob from the bottle of "Brand X", the same cannot be linked to the product of the plaintiff and consequently, in- my opinion, there will not be any question of disparaging, or defaming the product of the plaintiff In view of the foregoing, I modify the interim order passed on 2nd February, 1996 to the extent that I restrain the defendant from in any manner printing, circulating or distributing the point of sale posters at the consumer outlets or in the market place, where such goods are sold or in any manner publishing the impugned advertisement on the electronic media or at any other place with red blob on the bottle of "Brand X".

Hence the Defendants could continue the publication of this advertisement, only after the removal of the red blot on the bottle of "Brand X". This case and the principles it has laid down has been referred to in many such disputes regarding tortuous liability.

The above mentioned test for the comparative advertisement whether damaging the goodwill or brand of the other was recently discussed upon when the Samsung in its advertisement featured a comparison of its then recently launched Samsung Galaxy SIII and Apple I Phone 5. The Advertisement clearly showed the enhanced features of the Samsung Galaxy SIII when compared with Apple IPhone 5. It could have been presumed that the Samsung's intention was to show how the Galaxy SIII easily triumphs the Apple's I Phone 5. This also is a type of comparative advertising but however as the principles laid down in Reckitt and Colman of India Ltd. v. Kiwi T.T.K. Ltd. (1996) clearly state that this type of advertising and comparison is allowed to the limit that no defamation should be caused to the other party which can lead to damages in the business. In this advertisement similarly a detailed comparison is mentioned but the matter cannot be taken to the court since no defamatory comments have been made by the advertising company about the other good.

According to Section 499 of the Indian penal Code, 1860 provides that 'Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person'. The stated conduct of defamation comes with certain exception out of which the relevant for the advertisement could be 'It is not defemation to make an imputation on the character of the another provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, for the public good.'

In various judicial precedents the advertisements are found to be permissible one which tend to enlighten the consumer, either by exposing the falsity or misleading nature of the claim made by the trade rival or by presenting a comparison of the merits (or demerits) of their respective products. Ultimately such advertisements are to be inferred in in the 'public good'. It is understood that the comparative advertising would benefit society because competitors are naturally better equipped to expose a rival's untrue claims which will benefit the consumer and the amount of this benefit to the consumer/society would outweigh the loss of business for the person affected.


While there is no doubt that the law in India with regard to comparative advertising is well settled, the question that still remains unanswered is whether it has been settled in the right manner? By liberally allowing puffing up in marketing strategies, so long as a competitor is not adversely affected, the courts have turned a blind eye towards the equally important consumer and his interests. The manner in which competitive advertising is panning out in the Indian sphere, the focus only seems directed towards the grabbing of eyeballs, without providing any productive information for the consumer to utilize. The objective behind comparative advertising was not only being informative and an important tool to promote competition but for comparisons to serve as benchmarks to help consumers focus on the product's main qualities. As a direct influence of the liberalization and globalization, the market economy of the comparative advertisement gave the base to the consumers to prefer and differ from their choices6 Which in turns can be thought upon in two ways, encouraging competition and discouraging competition but unless the interest of the consumer is secured in the manner that the consumer is able to get the best product at the best prices, all goes well.


1.Vth year student, Amity Law School, Lucknow

2.Winfield &Jolowicz on 'Tort, Sixteenth edition '2002. Pg. 418

3.Ratanlal & Dhirajlal, The Law of Torts, 2006 (New Delhi), 265

4.128 (2006) DLT 81

5. See Comparative ads Need to be Curtailed: HC, THE HINDU BUSINESS LINE, Dec. 15, 2005, http://


7. See Keshav S. Dhadak and Vaishali Mittal, India: How to Gain from Comparative Advertising, http:/ /

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

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

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

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