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
