COMPARATIVE ADVERTISEMENT:

Testing its Foundation and Evaluating Its Scope

Submitted By:
SARTHAK KAPILA
ROLL NO. 48,
P.G.D.,I.P.R. 2014
Submitted On:
14.01.2015

COMPARATIVE ADVERTISEMENT: TESTING ITS FOUNDATION AND

EVALUATING ITS SCOPE
___________________________________________________________________
Abstract:
1

The opening up of the Indian economy has lead to a plethora of brands in the market. Firms have
been aggressively and vigorously promoting their products and services. It is a rule of
marketing, when a weaker brand attacks a stronger brand, the weaker brand wins; when a
stronger brand attacks a weaker brand, the weaker brand wins. As such, comparative
advertising is typically practiced by a lesser brand against the market leader. This is one of
the reasons that when companies adopt competitive advertising, they want to make sure that
consumers will accept the message that their product is superior and more desirable, and this
naturally leads to companies then showing the competitors product in the worst possible
light. This underlying pressure from the marketing department to denigrate the competitors
product is the main problem lawyers have of ensuring that the comparative advertisement
remains within the boundaries set by professional self regulatory bodies and legislation in
their respective country.
Through the course of the article, the author has examined the multiple mechanisms developed to
regulate comparative advertising, being both voluntary and statutorily enforceable in nature. In
evaluating the competing interests of different stakeholders, the evolution of the law with regard
to rights of the competitor and consumer has been observed. An analysis has also been made of
certain recent judicial pronouncements on the issue, which may help in determining the standard
of tolerance in comparative advertising.
Key Words: Advertisement, disparagement, denigration, puffery, unfair trade practice.

1. INTRODUCTION
The term comparative advertising refers to any form of advertising in which a trademark
owner attempts to enjoy pecuniary benefits from a comparison between his product, service, or
brand and that of a competitor. Comparative claims may vary in nature. They may explicitly
name a competitor or implicitly refer to him. They may either emphasize the similarities or the
2

differences between the products. They may also state that the advertised product is better than
or as good as the competitors.1 Comparative advertising generally possesses two components,
puffery and denigration. Puffery is where the advertiser seeks to draw the consumers attention by
making superlative claims about his product that are assertions of opinion, rather than verifiable
statements of fact. Often puffery crosses the limits of tolerance and seeks to portray the
competing product in a negative light. The same is then said to amount to denigration, which the
courts have strictly prohibited. Thus, the material question that often arises is to what extent
comparative advertising may be restricted. The answer lies in developing a clear understanding of
the conflicting interests of the various stakeholders involved, including the advertiser, the
competitor and the consumer. The advertisers objective herein is to present his products in a
manner such that the consumer is most likely to purchase it. On the other hand the competitor
would always try to prevent any advertising that aims at denigrating his product or makes false
claims, or uses his product as a standard which the advertiser claims to exceed. The hapless
consumer finds himself in the midst of the conflicting claims, and has the right to be accurately
informed about the quality or utility of the products available in the market.
Known in the trade as, Knocking Copy 2, comparative advertising is a technique by which a
product is compared with a competitive product with the intent of proving its superiority.3 In
contrast, the more traditional advertising approach of promoting sales is based solely on the
merits of a particular product or service. To elucidate upon it in a better way, during the 1999
World Cup Cricket, Coca-Cola rigorously campaigned itself to be the official cold drink of the
Indian cricket team and then Pepsi came up with an advertisement saying nothing official about
it.
Generally, the main aim behind comparative advertisement is to promote ones product at the
expense of another. This produces a situation of clashing principles and generates debates on the
legality of comparative advertisement. The reason lies in the fact that typically, comparative
advertisements contain more or at least apparently more information than normal
1

Charlotte J. Romano, Comparative Advertising in the United States and France, 25 NW. J. INTL L. & BUS. 371
(2004-05).
2
Petty R and Spink P, Comparative advertising in the European Union, International and Comparative Law
Quaterly, 47 (1998) 855.
3
The definition can be summed up by the adage, anything his can do, mine can do better, Lee, Comparative
advertising, commercial disparagement and false advertising, Trademark Reporter, 71 (1981) 620.

advertisements.and the possible abuse or benefit to the consuming public is greater. 4 In

addition, consumers seem to accord greater importance to comparative claims than to noncomparative claims. Legislative authorities, courts, administrative agencies, researchers, and
consumers representatives often deal with the same straightforward question: To what extent
should the comparative advertising be authorized or limited? The answer lies in the articulation
of the conflicting interest of the parties involved in comparative advertising; the advertiser, the
competitor and the consumer.

2. INTERFACE

BETWEEN

COMPARATIVE

ADVERTISING

&

PRODUCT DISPARAGEMENT
The very reason competitors enters a market is to eliminate as many competitors as possible
and to acquire the largest possible market share. Comparative advertising verbalizes commercial
activity. If one is allowed to compete then why should not he be allowed to state against whom
and against what he is competing and adduce evidence to show that what he is offering is
superior to what the others are offering?5 It motivates producers to enhance the quality of their
products.6 Further, it increases competition by lowering barriers to market entry.7 Moreover, all
consumers benefit from comparative advertising 8 as they are given better options. Also,
advertising enhances the potential for increasing profits through market share gains.9
The advocates of comparative advertising often argue that trade rivalries and economic
battles should remain confined to marketplaces; however the courts have been reluctant to accept
this proposition.10 The courts have in fact also condemned acts of generic disparagement, where
4

Stewart E S, The law of comparative advertising: How much worse is better than great, Columbia Law Review,
76 (1976) 80.
5
Margaret Willimsky S, Comparative advertising: An overview, European Intellectual Property Review, 18 (12)
(1996) 649-653.
6
McClain Al, When it comes to commercials, Iacocca wins out, Advertising Age, 6 June 1983, M-30, M-32.
7
Iyer E S, The influence of verbal content and relative newness on the effectiveness of comparative advertising,
Journal of Advertising, 17 (3) (1988) 15, 20.
8
Schnabel M, Conscious parallelism and advertising themes: The case for comparative advertising, Antitrust Law
and Economy Review, 7 (1974-75) 11, 16.
9
Wilkie W and Farris P, Comparison advertising: Problems and potential, Journal of Marketing, 39 (4) (1975) 7-15.
10
The proposition that trade rivalries and economic battles should remain confined to market places was proposed
in Erven Warnink BV and ANR v. J Townend & Sons (Hull) Limited and Anr, 1980 RPC 31; also see White v
Mellin, 1895 AC 154 where it was observed, The Court would then be bound to inquire, in an action brought,
whether this ointment or this pill better cured the disease which it was alleged to cure whether a particular article of
food was in this respect or that better than another. Indeed, the Courts of law would be turned into machinery for
advertising rival productions by obtaining a judicial determination which of the two was the better. However, this
proposition was rejected in Pepsi Co Inc and Ors v. Hindustan Coco Cola Ltd and Anr, 2003 (27) PTC 305.

an advertiser may not disparage the goods or services of a particular proprietor, but the class of
goods or services as a whole.11
According to Blacks Law Dictionary the word disparage means to connect unequally; or
to dishonor (something or someone) by comparison; or to unjustly discredit or detract from the
reputation of (anothers property, product or business); or a false and injurious statement that
discredits or detracts from the reputation of anothers property, product or business. 12 That
implies, disparagement is a false and injurious statement that discredits or detracts from the
reputation of anothers property, product or business.13
Comparative advertising is often supported on the basis of the advertising is commercial
speech and is therefore protected by Article 19 (1) (a) of the Constitution of India. 14 However,
freedom of speech and expression does not permit defamation and it would be a little far-fetched
to say that an advertiser has the liberty to disparage the product of his competitor without any
check, under the garb of freedom of speech. 15 The irony remains, that although it is one thing to
say that your product is better than that of a rival and it is another thing to say that his product is
inferior to your product, still while asserting the latter, the hidden message may be the former, but
that is inevitable in the case of a comparison. While comparing two products, the advertised
product will, but naturally, have to be shown as better.16

3. STATUTORY FRAMEWORK IN INDIA

11

Dabur India Ltd v. Colgate Palmolive India Ltd, IA No. 5445/2004 in CS (OS) No. 914/2004, decided on 9 th
September 2004 (Delhi High Court) wherein the court found that although the advertisement of the defendant made a
reference to the class of goods only, namely, red tooth powder, and did not specially referred to the plaintiffs
product, still the plaintiff would be entitled to get an injunction against the defendant, as the plaintiff held 85% of the
share of the market, in that product.
12
Garner Bryan, A Blacks Law Dictionary, 7th Edn. (West Group, Minnesota) 1999.
13
Meaning of disparagement, as given under Blacks Law Dictionary, Garner Bryan, A Blacks Law Dictionary, 7 th
Edn. (West Group, Minnesota) 1999.
14
Tata Press Ltd v. Mahanagar Telephone Nigam Ltd, AIR 1995 SC 2438. Initially, advertising was excluded from
the ambit of the provision, with the Supreme Court holding in Hamdard Dawakhana v. Union of India, AIR 1960
SC 554, that while advertisements were a form of speech, they were not constitutive of the concept of free speech.
The reason for the same was that in seeking to promote trade and commerce they were guided by the object of
commercial gain. A shift in the constitutional position was evidenced in the case of Tata Press v. Mahanagar
Telephone Nigam Ltd. wherein advertising was observed to be beneficial to consumers as it facilitated the free dissemination of information, leading to greater public awareness in a free market economy. Further, it was held to be
the life blood of the free media due to the substantial contributions it gave to print and electronic media
organizations.
15
Dabur India Ltd v. Wipro Limited, CS (OS) No. 18 of 2006, decided on 27th March, 2006 (Delhi High Court).
16
Dabur India Ltd v. Wipro Limited, CS (OS) No. 18 of 2006, decided on 27th March, 2006 (Delhi High Court).

Comparative advertising in India is a recent phenomenon. India enacted its new Trademarks
Act, 1999 and the Trademarks Rules, 2002, with effect from 15th September, 2003, to ensure
adequate protection to domestic and international brand owners, in compliance with the TRIPs
Agreement.17 As a measure to protect international proprietors, the Act defines a well-known
mark in relation to any goods or services to be a mark well known to a substantial segment of the
public using such goods or receiving such services.
The Trademarks Act, 1999, has incorporated provisions related to the concept in Section 29
(8) and 30 (1) of the Trademark Act. According to the statute, comparative advertising is
permissible but with certain limitations as to unfair trade practices. Unfair trade practices has
been defined under Section 36A of the Monopolies and Restrictive Trade Practices, 1969, which
stands repealed now.
Another statute, the Consumer Protection Act, 1986 provides protection against unfair trade
practice but in the case of comparative advertising, the parties are firms (whose products are
endorsed by the advertisements), which would not come in the ambit of consumers to approach
the consumer forum.18
In the legal framework governing comparative advertising, there has been a shift from
curbing monopolies to encouraging competition. The basic legal structure has been laid down by
the Monopolies of Restrictive Trade Practices Act, 1984 (M.R.T.P Act) and the Trade Marks
Act, 1999 (T.M.A.)
Section 36A of MRTP Act lists several actions to be unfair trade practices. 19 Unfair trade
practices in comparative representation include any promotion of goods or services that deceives
or gives false information regarding the goods or services of another person. Other instances of
unfair trade practices include the adoption of any unfair or misleading methods or practices in the
representation of goods and services. The entire concept of disparagement of goods of another
person thus flows from the MRTP Act.
17

See http://www.legalserviceindia.com/articles/tadv.htm., for Bansal Priya, Use of Trademark in comparative

advertising; Situation in India.
18
M Balasundaram v. Jyothi Laboratories Ltd., judgment of the MRTP Commission, 10/10/1994. Citation: 1995 (82)
CC 830.
19
The provision which pertains to comparative representation is contained in Section 36 A (1)(x) of the Monopolies
and Restrictive Trade Practices Act, 1969.

The law on comparative advertising and product disparagement, in relation to trademarks, in

India, is based upon the law as laid down in Irvings Yeast Vite Ltd v. FA Horse-nail.20
Section 29 (8) of the Trademarks Act, 1999 enunciates situations, when the use of a trademark
in advertising can constitute infringement. It says that any advertising which is not in accordance
with honest practices; or is detrimental to the distinctive character, or to the repute of the mark,
shall be an act constituting infringement. At the same time Section 30 (1) makes comparative
advertising an exception, to acts constituting infringement under Section 29. It provides that any
advertising which is in accordance with honest practices, and does not cause detriment to the
distinctive character or to the repute of the trademark will be permissible and will not constitute
infringement.
In era of globalization where business markets today are as aggressive as they can be; where
everything is about one brands superior claim against that of the competitor; where the business
struggle is more than ever, not only to gain the attention of the potential customers but also to
keep them as patrons, comparative advertisement laws become imperative. The Trademarks Act,
1999, though new, does not supplement the changing facets of this jurisprudence as it only
provides for circumstances under which the comparative advertising is allowed and fails to
address many issues of this jurisprudence like what amounts to comparative advertising, when it
would lead to product disparagement or what remedy is to be given in case of product
disparagement. Its the judicial pronouncements that are playing the important role in determining
the ambit of comparative advertising but they are handful in number. Are these judicial
pronouncements sufficient yard stick to answer the questions that arise in the disputes relating
to comparative advertising? The answer requires a study of these judicial decisions and
determination of the current situation in this regard.

4. JUDICIAL PRECEDENTS IN INDIA

There are a significant number of comparative advertising cases decided by the courts under
the MRTP regime. While the focus of these cases was largely on the protection of the consumer
rather than the use of infringed trademarks, they provided the groundwork for the present legal
stance towards comparative advertising in India.
20

(1934) 51 RPC 110 wherein it was held that use of anothers trademark in comparative advertising does amount to
infringement, Cf Pepsi Co Inc and Anr v. Hindustan Coca Cola and Ors, 2003 (27) PTC 305.

One of the early cases on Comparative Advertisement under the MRTP Era is M.
Balasundram v. Jyothi Laboratories and Anr. (Regaul vs Ujala Case)21, where a television
advertisement promoting Ujala liquid blue showed that two-three drops of this brand were
adequate to bring striking whiteness of clothes while several spoons of other brands were
required for the same effect. A lady holding a bottle of Ujala was looking down on another bottle
without any label, exclaiming chhi, chhi, chhi! in disgust. The manufacturers of Regaul, a
competing brand, complained to the Commission that the advertisement was disparaging its
goods. The Commission was of the view that a mere claim to superiority in the quality of ones
product by itself is not sufficient to attract clause (x). In the advertisement, neither did the bottle
carry any label nor did it have any similarity with the bottle of any other brand. It could not be
classified as a case of disparagement of goods.
The other leading judgments in this respect were the two Reckitt & Colman cases22. In the
case of Reckitt & Colman of India Ltd. v Kiwi TTK 23 the Delhi High Court held that statements
made by manufacturers claiming their product to be the best or puffing up their goods will not
give a cause of action for disparagement. However, any statements that portrays competitors
similar goods in bad light while simultaneously promoting the manufacturers own goods is not
permitted and will be tantamount to disparagement. 24 In the given case, both parties were in the
business of manufacturing shoe polish. The defendants, whose brand name was Kiwi marketed
an advertisement comparing a bottle of their shoe polish with another bottle, marked as Product
X whereby the virtues of the defendants product were extolled while disparaging the other
unnamed product. The plaintiff claimed that Product X bore a striking resemblance in design to
their own product namely, Cherry Blossom and that the advertisement disparaged its product.
Based on the stated reasoning, the Delhi High Court granted an injunction against the defendants
for the disparaging contents of the advertisement.

21

Judgement of the MRTP Commission dated 10/10/1994. Citation: 1995 (82) CC 830.
See Reckitt & Colman of India Ltd. v. Kiwi T.T.K., 1996 P.T.C. 193 T 399 (hereinafter referred to as Reckitt
Colman-1); Reckitt & Colman of India Ltd. v. M.P. Ramachandran & Anr., 1999 P.T.C. (19) 741 (hereinafter referred
to as Reckitt Colman-2).
23
See generally Reckitt Colman 1, 1996 P.T.C. 193 T 399.
24
Ibid. Reiterated in Reckitt Benckiser v. Hindustan Unilever (Delhi High Court) CS(OS) 1834/2012, date of
decision 13/05/2013, (Dettol v. Lifebuoy Soap).
22

The Calcutta High Court took it a step further in the case of Reckitt & Colman of India Ltd.
v. MP Ramachandran & Anr.25 While holding that the advertisement was made with the intent to
disparage and derogate the plaintiffs product, the Calcutta High Court laid down five principles
in aiding the grant of injunctions in such matters, stating that:26
1. A tradesman is entitled to declare his goods to be best in the world, even though the declaration
is untrue;
2. He can also say that my goods are better than his competitors, even though such statement is
untrue;
3. 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;
4. He, however, cannot while saying his good is better than his competitors, say that his
competitors goods are bad. If he says so, he really slanders the goods of his competitors. In other
words he defames his competitors and their goods, which is not permissible;
5. 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.
These principles were used in the much publicized case of Pepsi Co. Inc. v. Hindustan Coca
Cola Ltd.27 The plaintiff in the instant case claimed disparagement of trademark and copyright in
two advertisements of the defendants. One of the advertisements depicted a thinly veiled
substitute of Pepsi as a bachhon wali drink while mocking Pepsis advertising slogan by saying
Yeh Dil Mange No More. The entire commercial conveyed to the viewers that kids should
prefer Thums Up over Pepsi if they want to grow up. 28 The court while using the principles
laid down in the two aforementioned cases also went on to state that in order to decide questions
of disparagement, the following factors have to be kept in mind, namely:29
Intent of the commercial;
Manner of the commercial;
25

See Reckitt Colman 2, 1999 P.T.C. (19) 741.

Ibid.
27
2001 (21) P.T.C. 699.
28
See Navpreet Panjrath and Kanwardeep Singh, Comparative Advertising: Things You Can Do and Things You
Cant, http://news.indlaw.com/guest/columns/default.asp?navpreet.
29
See Pepsi Co. Inc. v. Hindustan Coca Cola Ltd., 2001 (21) P.T.C. 722.
26

 Story line of the commercial and the message sought to be conveyed by the commercial.
Although it is unclear whether these factors are to be read conjunctively or disjunctively, the
Delhi High Court used the second factor as the determining one. It ruled that if the manner in
showing the commercial is only to show that the product is better without derogating somebody
elses product, then no actionable claim lies. But if the manner of the commercial is ridiculing or
condemning the product of the competitor then it amounts to disparagement.30
With the enforcement of the Trademarks Act in 2003, there have been only a handful of
judgments in the new era of comparative advertising governance. The first of these was the
triumvirate of Dabur cases.31 In Dabur India Ltd v. Colgate Palmolive India Ltd. 32 However, the
decision in the case of Dabur India Ltd. v. Emami Limited33 has possibly set the law governing
comparative advertising down a potentially dangerous path. In the judgment the court ruled that
even if there is no direct reference to the product of a competitor and only a reference is made to
the entire class in a generic sense, a case of disparagement in such circumstances is still possible.
In Dabur India Ltd. v. Wipro Limited, Bangalore34 the judiciary added a new dimension to
the existing tests for determining disparagement. The court stated that in comparative advertising,
the degree of disparagement should be such that it would be tantamount to, or almost tantamount
to defamation.35
The decision in Godrej Sara Lee Ltd. v. Reckitt Benckiser (I) Ltd.36 was reflective of what
the courts thought honest comparative advertising to mean. The court observed that the
30

Reiterated in Reckitt Benckiser v. Hindustan Unilever, (Delhi High Court) CS(OS) 375/2013, Date of decision
14.05.2013; (Dettol Healthy Kitchen v. VIM Liquid), where the defendant maliciously equated its product to a
harsh antiseptic.
31
See Dabur India Ltd v. Colgate Palmolive India Ltd., 2004 (29) P.T.C. 401 (hereinafter referred to as DaburColgate); Dabur India Ltd v. Emami Limited, 2004 (29) P.T.C. 1 (hereinafter referred to as Dabur-Emami); Dabur
India Ltd.v. Wipro Ltd., Bangalore, 2006 (32) P.T.C. 677 (hereinafter referred to as Dabur-Wipro).
32
See Dabur-Colgate, 2004 (29) P.T.C. 401, where the commercial showed a film actor rubbing the plaintiffs dental
powder on the surface of a purchasers spectacles, leaving marks and depicting it to be akin to sandpapering. The
advertisement went on to show how the defendants product was sixteen times less abrasive than the plaintiffs
product and thereby less damaging to the teeth. This was a straightforward case of disparagement.
33
See Dabur-Emami, 2004 (29) P.T.C. 1, an advertisement issued by the defendant stating that consumers should not
use Chayawanprash in the summers but use the defendants product, which was more effective in the summer
months. The court went on to issue an injunction.
34
See Dabur-Wipro, 2006 (32) P.T.C. 677.
35
See Panjrath and Singh, supra note 10, at A-208-209.
36
2006 (32) P.T.C. 307, the defendants advertised their product Mortein which was meant to kill both cockroaches
and mosquitoes and the commercial highlighted this aspect. The plaintiff claimed that this disparaged their product
Hit, which had two separate versions for killing cockroaches and mosquitoes.

10

advertiser has a right to boast of its technological superiority in comparison with product of the
competitor. Telling the consumer that he could use one single product to kill two different species
of insects without undermining the plaintiffs products, by no stretch of imagination amounted to
disparaging the product of the plaintiff.37
The role of puffery as a facet of comparative advertising was substantively dealt with by an
Indian court for the first time in Reckitt & Colman of India Ltd. v. M.P. Ramchandran&Anr38.
The Ramchandran position on puffery was reconsidered to a limited extent in the matter of
Glaxo Smith Kline Consumer Health Care Limited v. Heinz India Private Limited and Ors. 39
Herein, the parties were manufacturers of the reputed nutritional drinks Horlicks and
Complanrespectively. In addition to allegations of implied disparagement, it was contended by
the plaintiff that the advertisement had attributed certain qualities to the defendants product in an
imprecise and untruthful manner. Such incorrect portrayal was argued to be an attempt to
misguide consumers with regard to the utility of the defendants product, resulting in the plaintiff
suffering extensive economic losses.
The Court herein adhered to the principles as had been stated in Ramchandran, holding that
an advertiser was at liberty to engage in puffery so long as the product of a competitor was not
slandered in any manner. On the other hand, it also sought to regulate such representations of
opinion by introducing a broad requirement to substantiate their tenability. However, with no
mechanism or standard of regulation being prescribed, the position on the point remained unclear.
A significant evolution of the law on false and imprecise puffery was seen in the case of
Colgate Palmolive (India) Limited v. Anchor Health and Beauty Care Private Ltd.40 A
momentous development seen in the reasoning of the Court was the introduction of the element
of consumer protection in the law regulating puffery, with the Court observing that the
consumer was as significant a stakeholder in the market as the competing manufacturers. With
37

See Manisha Singh Nair, India: Roads Ahead- Comparative Advertisement, http://www.mondaq. com/ article.asp?
article_id=39572.
38
Supra note 24.
39
2007 (2) CHN 44.
40
2009 (40) PTC 653, the parties herein were manufacturers of dental care products including toothpastes, with the
plaintiff seeking an injunction restraining the defendant from broadcasting the contentious advertisement. It was
contended by the plaintiff that in the advertisement the defendant had stated that its product Anchor was the only
one that contained three ingredients, namely calcium, fluoride and triclosan. Further, it was also claimed by the
defendant that Anchor was the first toothpaste that could provide all round protection.

11

consumers being the often gullible targets of advertising campaigns, the protection of their
interests was required while establishing a substantive mechanism to regulate comparative
advertising.
This decision marks a new development as it implicates that even puffery is allowed only in a
limited sense, where consumer interest is at stake it is not allowed and considered to be an unfair
trade practice.

5. CONCLUSION
No doubt that comparative advertising is beneficial as it increases consumer awareness and
therefore, it should be allowed. Moreover, it enables an advertiser to establish his brand in the
market by stating his superiority over the established brands. But, at the same time there have to
be regulations, to check abuses. Presently, the provisions under the Trademark Act are however,
sufficient to address the trademark issues involved in the comparative advertising disputes but it
should also be kept in mind that after the repeal of the MRTP ACT, there is no law to curb the
unfair trade practices of the manufacturers which provide effective remedy to the manufacturers
of the rival goods. The Consumer Protection Act, 1986 is meant for the consumers who are
deceived by such advertisements amounting to unfair trade practices. Thus, within the existing
law, a manufacturer whose product is disparaged has no locus standi to seek a remedy.
India has been resolving disputes regarding comparative advertisement only through its legal
precedents, which too are handful in number. It has failed to realize the urgency of a statute,
which could specify what road can be taken by the advertisers and what has been discarded by
them. Furthermore, the only remedy offered to the aggrieved party in comparative advertising is
that of injunction but India must realize the urgency of damages as a remedy to undo the harm
that has been caused to the innocent manufacturers. The nature and extent of comparative
advertising still remains the grey area. The level of permissibility with regard to simple puffery is
varying. However, a shift towards the interests of potential consumers has been observed in the
recent judicial pronouncement41 which is necessary because as we say that comparative
advertising increases public awareness, misleading and disparaging advertisement should not
mislead the public.
41

Colgate Palmolive (India) Limited v. Anchor Health and Beauty Care Private Ltd., 2009 (40) PTC 653.

12

_____________

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Charlotte J. Romano, Comparative Advertising in the United States and France, 25 NW.
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Iyer E S, The influence of verbal content and relative newness on the effectiveness of
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Manisha

Singh

Nair,

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Roads

Ahead-

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Margaret Willimsky S, Comparative advertising: An overview, European Intellectual

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McClain Al, When it comes to commercials, Iacocca wins out, Advertising Age, 6 June
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Petty R and Spink P, Comparative advertising in the European Union, International and
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Schnabel M, Conscious parallelism and advertising themes: The case for comparative
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14

Stewart E S, The law of comparative advertising: How much worse is better than
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Wilkie W and Farris P, Comparison advertising: Problems and potential, Journal of

Marketing, 39 (4) (1975) 7-15.

Books

Cf, Ryder Rondney D, Brands, Advertisements and Advertising (LexisNexis Butterworths,

New Delhi) 2003.

Kerlys Law on Trademarks and Trade Names 13th Edn. (Oxford, London).

McCarthy, J., McCarthy on Trademarks and Unfair Competition 4 th Edn. (Thomson/West,

Minnesota) 2005.

Michales, A Practical Guide to Trademark Law 2nd Edn. (Sweet & Maxwell, London)
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Dictionaries Blacks Law Dictionary, 7th Edn., (1999).

Concise Oxford English Dictionary, (2002).
Oxford Advanced Learners Dictionary, 8th Edn.
Treaties, Conventions and Statutes

Constitution of India.
Consumer Protection Act, 1986.
MRTP Act, 1969.
Paris Convention for the Protection of Industrial Property
Trade Related Aspects of Intellectual Property Rights.
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 Trademarks Act, 1999.

Web Sources www.indiankanoon.com
www.judis.nic.in
www.manupatra.com
www.westlaw.com
www.westlawindia.com
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