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We have seen many times that reputed brands directly attack their rivals while promoting their own products. The real question arises as to whether this constitutes a legal infringement of the trademark when they use their competitor’s name in advertisements ?
The answer seems to depend on the concept of comparative advertising.

Comparative advertising, where a brand highlights its superiority over competitors, is a potent strategy for influencing consumer choice. However, this approach must be navigated carefully to avoid legal pitfalls. Here’s an overview of the legal framework governing comparative advertising and some key considerations for advertisers.
Navigating Trademarks
Comparative advertising often involves referencing competitors’ trademarks, as seen in notable campaigns like Coke vs. Pepsi or Burger King vs. McDonald’s. While such comparisons can enhance brand identity, they must be handled with caution to avoid legal complications related to trademark use.
Legal Framework for Comparative Advertising
Constitutional Protection
In India, comparative advertising is protected under Article 19(1)(a) of the Constitution, which guarantees the right to commercial speech. However, this right is not absolute and must not be misleading or disparaging.
The Trade Marks Act, 1999
The Trade Marks Act, 1999, provides the primary legal framework for trademarks in advertising:
- Section 29(8): Addresses infringement of a registered trademark by advertisements that take unfair advantage, contrary to honest practices, or harm the trademark’s reputation.
- Section 30(1): Allows honest comparative advertising as long as it does not disparage competitors.
ASCI Guidelines
The Advertising Standards Council of India (ASCI) offers guidelines on comparative advertising:
- Advertisements must be clear, factual, and substantial.
- They should not create artificial advantages or mislead consumers.
Judicial Precedents in Comparative Advertising
Several court cases have influenced the principles governing comparative advertising:
Cola Wars Case
The Cola Wars case focused on the intent, manner, and storyline of advertisements. Puffery (exaggerated claims) was acceptable, but false denigration of rival products was not permitted.
Dabur India Ltd. v. M/s Colortek Meghalaya Pvt. Ltd.
This case involved generic disparagement. The court ruled that vague references to competitors’ products do not constitute actionable disparagement.
Havells India Ltd. v. Amritanshu Khaitan
In this case, the court emphasized that comparisons must be factual, accurate, and substantiated. Unfair denigration of competitors was not allowed.
Hindustan Unilever Ltd. v. Reckitt Benckiser
This case reinforced the need for honest comparative advertising. The court highlighted that statements must be accurate and not misleading.
Guidelines for Advertisers
References to Competitors’ Trademarks
- Permissibility: Advertisers can reference competitors’ trademarks but must avoid suggesting endorsement or affiliation.
- Substantiation: Claims must be supported by evidence to avoid misleading consumers.
Overall Impact
- Consumer Perception: Advertisers must assess how the advertisement will be perceived by ordinary consumers. Even brief references to competitors must not be misleading or create confusion.
What You Can Say
Consumer Comparison Survey
- Permitted Practices: Courts allow the use of actual consumer comparison surveys if the claims about competitors are substantiated. For example, the Pepsi Challenge used taste tests to demonstrate consumer preference for Pepsi.
Brand References
- Acceptable Use: Mentioning competitors’ brands is acceptable as long as it doesn’t create consumer confusion or imply endorsement. For instance, AOL’s targeted ads for AARP members were deemed permissible because they did not imply any endorsement by AARP.
Compatibility Assurances
- Compatibility Claims: Ads for products that serve as accessories to other brands (e.g., iPhone accessories) can mention the main brand (e.g., Apple). However, ads must avoid implying endorsement or affiliation. The Stouffers and Weight Watchers case illustrated the risks of potentially confusing consumers about brand relationships.
Conclusion
Comparative advertising can be an effective tool for differentiation, but it must be employed with caution. Advertisers should ensure their claims are truthful, non-deceptive, and substantiated. While references to competitors’ trademarks and products are permissible, they must be handled in a way that avoids misleading consumers or implying endorsements. Adhering to legal guidelines and industry standards will help navigate the complexities of comparative advertising while mitigating legal risks.
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