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Comparative Advertising: Where lies the “Lakshman Rekha”?

Before going through the judgments laid down by various fora in India, it would be helpful to take a look at the statutory law governing comparative advertisement. While the right to commercial speech, such as to compare products with those of competitors, by way of an advertisement, is protected under Article 19(1)(a) of the Constitution of India, such speech must not be disparaging/deprecatory in nature. What constitutes deprecatory/disparaging speech, however, is dependent on the facts and circumstances of each case.

Section 29(8) of the Trade Marks Act, 1999 (“Act”) provides that a registered trademark is infringed by an advertisement when such advertisement takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or is detrimental to the distinctive character of the registered trademark; or is against the reputation of a registered trade mark. However, Section 30(1) of the Act provides a safeguard for comparative advertisement, whereby if the identifiers of a competitor’s products used in an advertisement could be termed as honest, then such an advertisement would not be considered disparaging.

Apart from statutes, the Advertising Standards Council of India (ASCI) has also laid down guidelines, as per which, comparative advertising is only permissible in cases where the products compared are clear, factual, and substantial, if such comparison does not confer artificial advantages on the advertiser, there is no unfair denigration of the competing product, and if it is unlikely to mislead consumers.

Source: Barandbench

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