Tuesday, October 14, 2014

Product Disparagement

To say my product is superior is fine; but to say, that your/his product is bad, definitely calls for action. Advertisers have always used the test of comparison for the benefit of their clients, but when the comparison is false or misleading, the advertisement slides into the domain of Product Disparagement. To make an advertisement, and to see it succeed without getting involved in legal battles, one has to ensure that the message showcased in the advertisement does not encroach into the non-permissible limits of comparative advertising.

The courts have been supportive of the cause of Comparative Advertising, bringing a clear distinction between this and Product Disparagement, also referred to as Trade Libel. In Reckitt and Colman of India v. M.P. Ramachandran & Anr., [1999(19) PTC 741], the court very categorically specified that, the seller can, (i) declare his goods as the best, (ii) claim superiority of his goods over competitors’, (iii) compare advantages of his goods over that of others’, but, (iv) cannot say that his competitors’ goods are bad.

Since there is no specific legislation on the subject in India, the issue still evolves and bases itself on the common law principles. Unlike, the categorical demonstration and application of the Lanham Act, which governs the law of Trademarks in the US; Indian courts are still settling the issues with their own judicial insights and interpretations. 

- Bagmisikha Puhan