Authored by Pratiksha Rawat, a 4th-year of Amity Law School Delhi Affiliated to GGSIPU


The manufacturers of the product adopt extensive marketing practises to create the demand for the product among the consumers. In order to attract more and more customers, many manufacturers undergo advertising in full swing. The Advertising Standards Council of India defines the term advertisement as a paid-for communication addressed to the public for the purpose of the influencing their opinions. Many a time, some manufacturers engage in unfair practises advertising their products at the cost of the product of their competitors. False claims about the product of the competitor, misleading advertisements, comparing one's product with the competitor's product in order to belittle the competitor's product are a few examples of commercial disparagement.

Meaning of Commercial Disparagement:

Commercial disparagement also called as business disparagement is a civil wrong. The person charged of commercial disparagement has a tortious liability. A person is said to have committed commercial disparagement if he makes any negative statement against the title of an individual to his property or his property in order to prevent other persons from doing business with that person.

Difference between Commercial Disparagement and Comparative Advertising:

There is a fine line of difference between commercial disparagement and comparative advertising. Article 2 (c) of the European Directive concerning Misleading and Comparative Advertising defines comparative advertising as any advertisement which identifies the competitor or his products either explicitly or impliedly. Showcasing one's product superior to the competitors' product falls within the ambit of comparative advertising, and the same is allowed. However, where a manufacturer makes any false statement with regard to the product of his competitors in order to make his product superior is known as commercial disparagement.

The laws of India allows the former one i.e. comparative advertising but prohibits the latter, i.e. commercial disparagement. Comparative advertising can turn into commercial disparagement if the manufacturer uses any false claim in respect of the competitor or his product or represents the products of the competitor inferior in comparison to his product.

Essentials of Commercial Disparagement:

In order to file a successful claim of commercial disparagement against the manufacturer, a competitor is required to state the presence of the following essential ingredients-

  • The manufacturer made a completely false statement in the advertisement against the competitor.
  • The intention of the manufacturer behind making such a false statement was to cause financial loss or damage to the competitor.
  • As a result of the concerned advertisement, the competitor suffered actual loss or damages.

Freedom of Speech:

The Supreme Court in the landmark judgment of Tata Press Limited v. Mahanagar Telephone Nigam Ltd1 held that the comparative advertisement is protected under Article 19(1) (a) of the Constitution as a form of free speech. The restrictions can be placed on the comparative advertisement by the government only in accordance with the provisions of Article 19(2) of the Constitution.2 Furthermore, the protection of the corporate entity under Article 19(1)(a) of the Constitution was also granted. From this judgment, it can be concluded that the competitors have the freedom of speech to promote their products and compare them with their rival manufacturers.

The ordinary person test:

The ordinary test was employed by the courts in the case of Dabur3 and Colgate4. In the present case, the courts dealt with the impact of such advertisements on the ordinary person with reasonable intelligence. An advertisement will be considered as being disparaged if it creates a sense of bias and inferiority with respect to the competitor's product in the minds of an ordinary person.

Legal consequences of Disparagement:

The consequences of the commercial disparagement are similar to those ensued in the civil suit. The complainant competitor can file a claim for an injunction of damages against the manufacturer or advertiser of the concerned advertisement.

Exceptions to Disparagement:

  1. True statement or claim is an absolute defence for commercial disparagement.
  2. The statement concerned was a mere opinion and cannot amount to any action.
  3. The conditional or absolute privilege is endowed with the defendant.

The laws and regulations to govern the commercial disparagement is in a very nascent stage in India and is still in the process of development. With the rapid and continuous growth in the business world, there is a need for more specific laws and regulations.


The laws and regulations to govern the commercial disparagement is in a very nascent stage in India and is still in the process of development. With the rapid and continuous growth in the business world, there is a need for more specific laws and regulations.

Relevant Case laws:

Amul vs Kwality5

In a judgment given by the single judge of the Bombay High Court, Amul was restrained from broadcasting two particular Television Commercials ("TVCs") or making any advertisement of a similar nature to denigrate the products of Kwality in any manner. In the concerned advertisements, Amul made a comparison of its ice creams with the frozen desserts. The TVC stated that the products (i.e. ice creams) manufactured by Amul contain 100% milk, whereas frozen desserts manufactured by the competitor are made with vanaspati. Although the TVC did not mention Kwality or contain its trademark, the complainant (i.e. Kwality) contended that the concerned advertisement denigrates frozen desserts in general, the majority of which are manufactured by it.

The complainant also raised the contentions that the frozen desserts are manufactured using edible vegetable oils and not vanaspati and that both frozen desserts and ice-creams contain 90% milk. On the contentions of the complainant, Amul stated that there are at least 30% manufacturers of the frozen desserts in the market who use vanaspati. Therefore, the fact stated in the advertisement was true, which is an absolute defence to disparagement. The court observed that 70% of the manufacturers of the frozen desserts did not use vanaspati, but the advertisement published by the Amul attributes negative qualities to the frozen desserts in general. It was held that the advertisement was based on incorrect facts and was made with an intention to discourage consumers from using frozen desserts, thereby causing disparagement.


1.(1995) 5 SCC 139

2. Tata Press Limited v. Mahanagar Telephone Nigam Ltd (1995) 5 SCC 139.

3. Dabur India Ltd. v. Colortek Meghalaya Pvt. Ltd 2010 SC Online Del 391.

4.Colgate Palmolive Company & Anr. v. Hindustan Unilever Ltd 2014 (57) PTC 47 DEL(DB)..

5.Gujarat Co-Operative Milk Marketing Federation Ltd. v. Hindustan Unilever Ltd and Ors Appeal No. 340 of 2017 dated December 13, 2018.

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.