"The very purpose of comparative advertising negates infringement. Infringement defeats the purpose of comparative advertising. Comparative advertising is antithetical to infringement."
- In comparative advertising, the advertiser portrays superiority of his goods and services, thereby, influencing the patron to prefer them over those of their competitor.1 It can be opined that comparative advertising may go against the mandate of section 29(8) & Section 30(1) of the Trade Marks Act, 1999. A trader is permitted to match his goods with those of another trader. He can make this comparison by highlighting the qualities and efficaciousness of his goods without stating or commenting on these aspects of his competitor's goods. This can be a form of comparative advertisement conceptualized in Section 30 of the Trade Marks Act, 1999. The Act states that such depiction shall not, inter alia, be unfair or detrimental to the "repute" of the trade mark. In other words, the reputation of the goods cannot be lowered. Moreover, the employment of the mark should be honest. A trader is allowed to match his product with that of another, in a billboard. Generally, advertisements are taken as a hyperbole by reasonable people.2
- The primary objective of Sections 29(8) and 30(1) of the Trade Marks Act, 1999, is to permit comparative advertising as long as the use of a competitor's mark is honest. The test of honest use is an objective test which depends on whether the utilization is considered honest by the members of audience.3 It is quite apparent upon the bare text reading of the said section that not all comparative advertising will offend trade mark. It will constitute an infringement of registered trade mark only if the advertisement constitutes an unfair advantage or is contrary to honest practices in industrial and commercial matters or is detrimental to the distinctive character of the competitor's trade mark or is against the reputation of the trade mark of the competitor.4 In Havells India Ltd v. Amritanshu Khaitan, 5 it was ruled by hon'ble Delhi High Court that although in comparative advertising a certain amount of disparagement is implicit, yet the same is legally permissible so long as it does not mislead.
- In Colgate Palmolive Company v. Hindustan Unilever Ltd.,6 it was ruled that in comparative advertising, a specific amount of disparagement is implicit and as long as the advertisement is restricted only to puffing, there can be no actionable claim against the same. It is now a settled law that mere puffing is not actionable. A tradesman can say his goods are best or better in comparison but cannot slander or defame the products of the competitor. Neither can he call them bad or inferior. The settled law on the point appears to be that a manufacturer is entitled to make a statement that his goods are the best and can also make some statements for puffing his goods and the same will not give a cause of action to other traders or manufacturers of similar goods to institute proceedings as there is no disparagement or defamation to their goods. However, a manufacturer is not entitled to say that his competitor's goods are bad so as to puff and promote his goods. It, then, appears that if an action lies for defamation an injunction may be granted.7 Passing-off is different from comparative advertisement. In the former case, the defendant attempts to pass off his goods as those of the plaintiff's while in latter, the defendant manifests the superiority of his product over plaintiff's product.
It emerges that there is no dispute that comparative advertising is permissible in law. There are however certain guidelines that the courts have recognized when it comes to comparison of competing products. The comparative advertising campaign should be genuine comparison. Valuable information often forms a part of advertisements and might promote healthy competition within the market. If this is the message conveyed, the courts would be resilient and permit the negative derivatives of comparison. This is because the final outcome is positive. However, if it may be gauged that the message broadly demonstrates slanderous or indiscriminate negative comparison or insinuation, then such an act will be a direct assault upon the cannons of ethical marketing.8
1 Reckitt Benckiser Healthcare India Ltd. v. Emami Limited, 2015 SCC OnLine Cal 121.
2 Reckitt Benckiser (India) Ltd. v. Hindustan Unilever Ltd., 2013 SCC OnLine Cal 17896.
3 Horlicks Ltd. v. Heinz India Private Ltd., 2018 SCC OnLine Del 12975.
5 2015 (62) PTC 64 (Del).
6 2014 (57) PTC 47 [Del](DB].
7 Reckitt & Colman of India Ltd. v. Kiwi T.T.K. Ltd, 1996 SCC OnLine Del 335.
8 Dabur India Ltd v Emami Limited, 2019 SCC OnLine Del 9022.
Originally Published 21 July 2021
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