India: Defamation And Comparative Advertisement

Last Updated: 23 March 2015
Article by Karan Gandhi and Pratiksha Chaturvedi


"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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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 (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

To Use 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.


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.


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