The legal stance of comparative advertisement through the lens of Trademark Law

The comparative advertisements in today's business intensive and highly competitive market plays a crucial role in establishing brand superiority. The advertisements which compare one's own brand with those of other is permissible to the extent that it establishes its own superior qualities as opposed to disparaging the rival brands. This article delves into the intricate world of comparative advertising, disparagement and the Trademark Act of 1999, shedding light on the legal implications of comparative advertisement and its impact in the era of social media marketing.

Comprehending Comparative Advertisements

Comparative advertising is a marketing technique or a strategy whereby a person or an entity directly or indirectly engages in the comparison of its products or services with those of its rival brands who are typically their market competitors. While, comparative advertisement serves as a useful marketing strategy for the brand owners to boost the superiority of their own goods or services per contra it has potential adverse impact on the rival brands operating in the marketplace. The phenomenon of comparative advertisement can be seen as a two edged sword which gives raise to both positive and negative market effects such as promoting one's own brand and exhibiting its superiority and on the contrary affecting the profits made by the rival brands through sale or provision of goods or services. Section 30 (1) of the Indian Trademarks Act, 1999 allows comparative advertisement to the extent that it adheres to the honest industrial or commercial practices. It must be noted that the advertisements which compare two or more products or services must not fall within the purview of disparagement which means misleading the consumers that the competitor's products or services are of inferior quality.

Comparative advertisement vis a vis Disparagement

The  acts amounting to trademark infringement is legally set forth under Section 29 of the Trademark Act, 1999. Section 29(8) of the Trademark Act, 1999 considers the following advertisements as acts amounting to trademark infringement:

Any advertisement which utilises the registered trademark of a third party in a manner:

• that takes unfair advantage of the mark or is contrary to honest commercial or industrial practices.
• that is detrimental to the distinctive character of the trademark.
• that is against the trademark's reputation.

Therefore, it can be inferred that the comparative advertisements that are honest and bonafide which genuinely puts forth the superior characteristics of one's own brand is permissible in law while the misuse or misrepresentation of a competitor's mark can amount to trademark infringement or disparagement.  However, it is pertinent to note that what particularly amounts to honest industrial or commercial practices are still at the mercy of the facts and circumstances of each case at hand.Disparagement can be understood as the act of putting down the rival brand's goods or services. Any advertisements which disparages the reputation of a registered trademark amounts to infringement. Since such advertisements have the potential to affect the competitor's brand and profits made by them the comparative advertisers are at the risk of balancing between permissible comparative advertisements and disparagements. The claims made by the advertisers must be honest, true and bonafide. Any false or misleading statements or claims made by the advertiser under the garb of comparative advertisement with respect to the rival brand can end up at legal battles. In today's digital era, the social media marketing has been flooded with comparative advertising strategies. The Indian judiciary has categorically ruled about the social media influencer's responsibility particularly pertaining to comparative social media advertisements as can be seen in the precedent of Marico Limited v. Abhijeet Bhansali.

Striking the Right Balance

The brand owners can strike a right balance between permissible comparative advertisements without falling into the purview of disparagement by advertising honest and bonafide statements about rival brands with clear disclaimers. It is essential for the brand owners to bear in mind that the statements or claims made in the course of comparative advertisements cannot be false or misleading adhering to honest business and commercial practices. The judiciary has clarified that mere puffery does not amount to trademark infringement or disparagement unless the claims or statements made can be substantiated by valid proofs.

Conclusion

The brand owners are benefited largely through the strategy of comparative advertisements as it enables them to attract consumers by contrasting the differences between their brand and those of others. The advertisers are allowed to therefore engage in puffery without falling into the ambit of disparagement. When the statements are true, honest, not misleading in nature and which can be substantiated with evidences pass the test of permissible comparative advertisements. However, it is pertinent to note that what essentially amounts to honest commercial or business practices is still not laid down concretely as it is subjective in nature.  

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