1. REGULATION OF COPARATIVE
ADVERTISING
Sanjeev Kumar Chaswal
Advocate and IPR Attorney
LL.M ( IPR,ARB & ADR)
M.S (Cyber Law and Cyber Security)

2. Over view - Comparative Advertising
• Most comparative advertisements refer to rival products
as ‘ordinary,’ instead of specifically mentioning names of
products. Aggrieved firms have claimed that ‘ordinary’
refers to all products other than the advertised one.
• Comparative advertising is advertising where one party
advertises his goods or services by comparing them with
the goods or services of another party.
• This raises several concerns - on the one hand, the
concern of brand owners for their goodwill being harmed
and, on the other, the benefits for consumers that may
result from the reduction in information asymmetry and
the stimulation of competition.
• If the disparagement is based on ‘false and misleading
facts’ that the advertisement becomes an unfair trade
practice.
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3. Concept and Definition
• Comparative advertising is an advertisement in which a
particular product, or service, specifically mentions a
competitor by name for the express purpose of showing
why the competitor is inferior to the product naming it.
• Comparative advertising, also referred to as ‘knocking
copy’, is loosely defined as advertising where “the
advertised brand is explicitly compared with one or more
competing brands and the comparison is oblivious to the
audience.
• They may explicitly name a competitor or implicitly refer
to him it may emphasize the similarities (positive
comparisons) or the differences (negative comparisons)
between the two products.
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4. • The advertised product is “better than” (superiority
claims) or “as good as” the competitor’s (equivalence
or parity claims).
• No Indian statute defines the term, but the UK
Regulation defines comparative advertising as meaning
any advertisement which “explicitly or by implication,
identifies a competitor or goods or services offered by
a competitor”.
• In this backdrop, the Delhi High Court summarized the
law on the subject in the case of Reckitt & Colman v.
Kiwi TTK , as follows:
• 1. A tradesman is entitled to declare his goods to be the
best in the world, even though the declaration is untrue.
• 2. He can also say that his goods are better than his
competitor’s, even though such statement is untrue.
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5. • 3. For the purpose of saying that his goods are the
best in the world or his goods are better than his
competitor’s he can even compare the advantages of
his goods over the goods of others.
• 4 One, cannot say his goods are better than his
competitors', or say that his competitors' goods are
bad. If one says so, then 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 for recovery
of damages for defamation, then the Court is
competent to grant an order of injunction restraining
such defamation.
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6. Statutory Provisions In India:
India:
• The Supreme Court was significantly led by the Judgment
of the American courts. The Indian Supreme Court’s had
also reflected its doubt in their decision on the Hamdard
Case in 1960 as per American courts judgments of 1940.
• In the backdrop of revisions change in the position of the
American courts, the Supreme Court, gave its view in the
Tata Yellow Pages case in 1985, was categorical: We,
therefore, hold that ‘commercial speech’ is a part of
freedom of speech and expression guaranteed under
Article 19(1)(a) of the Constitution.
• The MRTP Commission has followed the constitutional
freedom under “MRTP Act”. A party has a right to advertise
its product making commendation about its quality.
Advertisement being a commercial speech, which is a part
of the freedom of speech is guaranteed under article
19(1)(a) of the Constitution. The MRTP Act and the Trade
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Marks Act, 1999 work in tandem

7. • to provide the basic structure that govern Comparative
Advertising. :
• The Trade Marks Act is a balance to the conflicting interests
of the rights of registered trade mark owners and a keeps a
consumer interest in informative advertising.
• The Trademarks Act, 1999 has provisions related to this
concept in Ss. 29(8) and 30(1). According TM Act
Comparative Advertising is permissible, with certain
limitations as to unfair trade practices.
• Section 29(8) of the Trade Marks Act provides that a
registered trademark is infringed by any advertising, if such
advertising takes unfair advantage and is contrary to honest
practices in industrial or commercial matters, is detrimental
to its distinctive character, or is against the reputation of the
trade mark. The Section 30(1) however, provideds an escape
route for what would otherwise have been an infringing act
under Section 29, if the impugned use of the mark is in
accordance with “honest practices” in industrial or
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commercial matters.

8. Honest practices - mandatory for
Comparative Advertising
• Comparative advertising aims to objectively and
truthfully inform the consumer, and promotes market
transparency, keeping down prices and improving
products by stimulating competition. Therefore, it is
important to protect the interests of such competitors
by not allowing comparative advertising to cause
confusion, mislead, or discredit a competitor.
• There is no definition or explanation as to what
constitutes “honest practices”. There is a large and
clear shared core concept of what constitutes honest
conduct in trade, which may be applied by the courts
without great difficulty and without any excessive
danger of greatly diverging interpretations.
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9. • In BMW v. Deenik , European Court of Justice, 3
December 1998, BMW v Deenik The question was
whether a trader, not being an authorized dealer of BMW
motor cars, was entitled to use the name BMW being a
registered trademark of the BMW manufacturing
company, in the context of holding itself out as having
specialized expertise in servicing BMW cars. The Court
held that the proprietor of the trademark is not entitled to
prohibit a third party from using the mark for the purpose
of informing the public that he carries out the
maintenance and repair of the goods covered by that
trademark, unless the mark is used in a way that may
create the impression that there is a commercial
connection between the other undertaking and the
trademark proprietor, and in particular that the reseller’s
business is affiliated to the trademark proprietor’s
distribution network or that there is a special relationship
between the two undertakings.
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10. Comparative Advertising - Unfair Trade
practices:
• Comparative advertising is also subject to certain other
limitations contained in the definition of ‘unfair trade
practices’. In 1984 the MRTP Act was amended to add a
chapter on unfair trade practices.
• Section 36A of the MRTP Act lists several actions to be
an ‘unfair trade practice’ as any unfair method or unfair
or deceptive practice which gives false or misleading
facts disparaging the goods, services or trade of another
person.
• The object of this section is to bring honesty and truth in
the relationship between the provider of the services and
the consumer, and when a problem, arises as to whether
a particular act can be condemned as an unfair trade
practice or not,
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11. • the key to solution would be to examine whether it
contains a false statement and is misleading and
further what is the effect of such representation on
the common man.
• From the above context it may be gathered that false
representation would mean an incorrect or untrue
statement or expression which is designed to
influence and induce a consumer to buy or engage,
or use such goods or services and make such
advertisements available to the members of the
public.
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12. Concept of Disparagement:
• Section 36 A of the MRTP Act purports that unfair trade
practices are those which lead to disparagement of the
goods, services or trade of another person. The term
“disparagement” has not been defined in any statute,
but judicial pronouncements have adopted its dictionary
meaning.
• The New International Webster’s' Comprehensive
Dictionary, disparagement means, to speak of
slightingly, undervalue, to bring discredit or dishonor
upon, the act of depreciating, derogation or valuation, a
reproach, disgrace, an unjust classing or comparison
with that which is of less worth, and degradation.
• The Concise Oxford Dictionary defines disparage as
under, to bring dis-crediting or reproach upon;
dishonour; lower in esteem; speak on or treat
slightingly or vilify; undervalue, and deprecate.
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13. • In the electronic media the disparaging message is
conveyed to the viewer by repeatedly showing the
commercial everyday thereby ensuring that the
viewers get clear message as the said commercial
leaves an indelible impression in their mind. But, it
must be noted that a mere opinion, which is not a
statement of fact, would not attract Clause (x) of
Section 36A (1).
• In the New Pepsodent v Colgate case , HLL advertised
its toothpaste ‘New Pepsodent’ as “102% better than
the leading toothpaste”. In the television
advertisement, samples of saliva are taken from two
boys, one who has brushed with the new Pepsodent
while another has brushed with “a leading
toothpaste”.
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14. • The saliva of “the leading toothpaste” shows larger
number of germs. While the sample was being taken
from the boys, they were asked the name of the
toothpaste with which they had brushed in the morning.
• One boy said Pepsodent, the response of the second
boy was muted, however, lip movement of the boy
would indicate that he was saying “Colgate”.
• Also, when the muting was done, there was a sound of
the jingle used in the Colgate advertisement. According
to the Commission, the word toothpaste had become
synonymous with Colgate over the years and a
reference to “leading brand” was to Colgate. Thus it
became a case of Comparative Advertisement which led
to the disparagement of Colgate’s products.
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15. • Use of the trademark to disparage the goods of another,
and the aforementioned concepts of comparative
advertising have been dealt with in Pepsi Co. Inc. and
Ors. v. Hindustan Coca Cola Ltd. and Anr .
• Pepsi, the appellants filed suit against Hindustan Coca
Cola and others, who were endorsing their product with
the help of a commercial which shows that the lead
actor asks a kid which is his favorite drink. He mutters
the word "Pepsi", which can be seen from his lip
movement though the same is muted.
• The lead actor thereafter asks the boy to taste two
drinks in two different bottles covered with lid and the
question asked by the lead actor is that "Bacchon Ko
Konsi pasand aayegi"? After tasting, the boy points out
to one drink and say that that drink would be liked by the
children because it is sweet.
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16. • In his words he says. "Who meethi hain, Bacchon ko
meethi cheese pasand hai". He discredited the drink
which according to him has a sweet taste. He preferred
the other drink which according to him tastes strong
and that grown up people would prefer the same.
• At that point, the lead actor lifts the lid from both the
bottles and the one which is said to be strong taste
reveals to be "Thums Up", and one which is sweet, word
"PAPPI" is written on the bottle with a globe device and
the colour that of the "PEPSI". Realising that he had at
the initial stage given his preference for "PEPSI" and
subsequently finding it to be a drink for kids, the boy felt
embarrassed. He depicts this embarrassment gesture by
putting his hands on his head. There are other
commercials by the respondents where the lead actor
said "Wrong choice baby", and that the "Thums Up" is a
right choice, and "Kyo Dil Maange No More" for the
appellant’s products.
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17. • Here the issue was whether the commercial by
depicting that the boy preferred Thums Up as against
"Pepsi" because Thums Up is strong drink while
"Pepsi" is for children as children like sweet, amounts
to disparagement or it is only a healthy competition and
puffing the product of the respondents?
The Delhi HC explained the concept of disparagement
stating that “a manufacturer is entitled to make a
statement that his goods are the best and also make
some statements for puffing of his goods and the same
will not give a cause of action to the other traders or
manufacturers of similar goods to institute proceedings
as there is no disparagement or defamation or
disparagement of the goods of the manufacturer in so
doing. However, a manufacturer is not entitled to say
that his competitor’s goods are bad as to puff and
promote his goods, and concluded that comparative
advertising cannot be permitted which discredits or
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18. ” denigrates the trade mark or trade name of the competitor.
In another case, the Supreme Court was of the view, that in a
democratic economy, free flow of commercial information
is indispensable and advertisement is a facet of
“commercial speech” as public at large is benefited by the
information made available through the advertisement.
Thus, “commercial speech” is a part of Freedom of Speech
and Expression guaranteed under Article 19 (1) (a) of the
Indian Constitution.
• To decide the question of disparagement of another’s
goods. Unfair trade practice can be ascertained only in the
presence of false or misleading facts through scientific or
technical assessment of the claims. It is not actionable if
the manner is only to show one’s product better or best
without derogating the competitor’s product. Thus, Courts
have taken the position that “publicity and advertisement
of one’s product with a view to boosting sales is a
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legitimate market strategy.”

19. Comparison Between Comparative
Advertising Laws Of Different
Countries:
• Like the Indian law, jurisdictions in UK and U.S.A.
allow comparative advertising, since comparative
advertising provides consumers with information
about both parties' products through a quick
comparison, effectively results in lower prices,
encourages competition, and helps prevent
monopolies.
• Comparative advertisements could be either
indirectly or directly comparative, positive or
negative, and seeks “to associate or differentiate the
two competing brands”. Different countries apply
differing views regarding the laws on comparative
advertising.
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20. United Kingdom
• The UK has a relatively liberal regime permitting
comparative advertising. The European Standing
Committee of the UK Parliament debated the issue of
comparative advertising in November 1995 and stated
that the government viewed this type of advertising as
‘a legitimate, useful and effective marketing tool’ which
‘we believe stimulates competition and informs the
consumers. Section 4(1) (b) of the 1938 Act was
replaced in the new Act by Section 10(6). Also relevant
is Section 11(2), which has been held to permit fair
comparisons of goods, for example, indications of
quality or price.
• In the UK, most of the use of competitor’s registered
trademark in a comparative advertisement was an
infringement of the registration up till the end of 1994.
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21. • However, the laws on comparative advertising were
harmonized in 2000. The current rules on comparative
advertising are regulated by a series of EU Directives.
The Business Protection from Misleading Marketing
Regulations 2008 implements provisions of Directive
(EC) 2006/114 in the UK.
• The primary objective of section 10(6) is to permit
comparative advertising, as stated clearly by Laddie J
in Barclays Bank v. RBS Advanta. Since the TMA 1994
came into force, there have been a number of decisions
under section 10(6). It include Barclays v. RBS Advanta,
Vodafone v. Orange, British Telecommunications v.
AT&T . Barclays, BT, Macmillan Magazines was an
application for interlocutory injunction and Vodafone was
a trial. It is interesting to note that in all of these cases
the plaintiff was unsuccessful, with judgments being
firmly in favour of comparative advertising in general.
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22. USA History
• The earliest case concerning comparative advertising
dates back to 1910 in United States – Saxlehner v
Wagner. Prior to the 1970s, comparative advertising was
deemed unfeasible due to related risks. For instance,
comparative advertising could invite misidentification of
products, potential legal issues, and may even win public
sympathy for their competitors as victims.
• In 1972, the FTC began to encourage advertisers to make
comparison with named competitors, with the broad,
public welfare objective of creating more informative
advertising. The FTC argued that this form of advertising
could also stimulate comparison shopping, encourage
product improvement and innovation, and foster a
positive competitive environment. However, studies have
shown that while comparative advertisements had
increased since 1960, the relative amount of comparative
advertising is still small.

23. USA
In the United States, maximizing consumer welfare and
promoting a free and competitive economy has been
the guiding objective and “the keystone of
governmental attitude towards the business scene” for
more than 100 years.
Thus, in US comparative advertising has been a well-
recognised and acceptable form of advertising , and
enjoys the additional protection of freedom of speech
laws. The 1969 Federal Trade Commission (FTC) Policy
Statement on Comparative Advertising encouraged the
use of comparisons that name the competitor or the
competitive product. However, the negative
consequences of false and confusing comparative
claims led the FTC to require “clarity, and, if necessary,
disclosure to avoid deception of the consumer.”
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24. • Another major law is the Trademark Lanham Act, which
states that one could incur liability when the message of
the comparative advertisement is untrue or uncertain,
but has the intention to deceived consumers through
the implied message conveyed.
• The FTC and the National Advertising Division of the
Council of Better Business Bureaus, Inc. (NAD), govern
the laws of comparative advertising in the United States
including the treatment of comparative advertising
claims. FTC stated that comparative advertising could
benefit consumers and encourages comparative
advertising, provided that the comparisons are “clearly
identified, truthful, and non-deceptive”.[15] Although
comparative advertising is encouraged, NAD has stated
“claims that expressly or implicitly disparage a
competing product should be held to the highest level
of scrutiny in order to ensure that they are truthful,
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accurate, and narrowly drawn

25. • For example, in Tommy Hilfiger Licensing Inc. vs. Nature
Labs LLC [2002] , Nature Labs, a shop selling pet
perfumery, used "Timmy Holedigger" as its trademark as
well as the slogan "If you like Tommy Hilfiger, your pet
will love Timmy Holedigger". Tommy Hilfiger, one of the
best recognized U.S. fashion labels, brought a lawsuit
against Natural Labs for, among other things, trademark
infringement, unfair competition, trademark dilution and
commercial fraud.
• The court held that the use of a trademark similar to
Tommy Hilfiger by the defendant is a fair parody, a type of
"freedom of speech" protected under the First
Amendment of the United States Constitution.
Consumers were more likely to laugh at the humor in the
parody than be confused about the origin of the products.
Moreover, the comparison used by the respondent did not
depreciate the claimant's products in any means.
Therefore, the court dismissed all of the plaintiff's claims.
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26. Australia
• In Australia, no specific law governs comparative
advertising although certain cases regarding this
matter have occurred.
• Comparative advertising that is truthful, and does not
lead to confusion is permitted.
• Generally, Australian advertisers should make sure
that the following are complied when exercising
comparative advertising to avoid breaches regarding
misleading advertising under Australia Consumer Law
1. Product compared should be like products as per
HCF Australia Ltd v Switzerland Australia Health Fund
Pty Ltd, or else comparison must be made clearly to
consumers as per Gillette Australia Pty Ltd v
Energizer Australia Pty Ltd;
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27. 2. Test results are presented as it is as per Makita v
Black & Decker;
3. Test used are appropriate and conducted according
to industry guidelines as per Duracell Australia Pty
Ltd v Union Carbide Australia Ltd; and
4. Mock up test results truly reflects how is product
functioning in real life as per Hoover (Australia) Pty
Ltd v Email Ltd
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28. China:
• It is interesting to note that the laws relating to
comparative advertising in China are a total contrast to
those of the US, UK and India.
“Trade mark owners need to be careful with advertising
in China … aggressive campaigns which might work in
other countries can be punished" .
• The Advertising Law is primarily directed towards the
protection of consumers’, as distinct from competitors’,
interests.
• In fact, Articles 7 and 12 of the Advertising Law
effectively disallow comparative advertising , since the
ultimate purpose of comparative advertising is to prove
that the advertiser's products are better than its
competitor's, such comparison, has the actual effect of
disparaging other commodities or services.
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29. China Contd….
Contd….
• Moreover, according to The Criteria for Advertising
Examination issued by the State Administration for
Industry and Commerce ("SAIC") in 1994,
comparative advertising should not involve any
direct comparison of specific products or services.
Since these provisions tend to be either too vague or
too strict, Chinese enterprises hesitate to engage in
comparative advertising.
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30. CASES {Regaul vs Ujala }
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 one’s product’4 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. The
Commission, thus, was of the opinion that it could not be
classified as a case of disparagement of goods.
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31. Novino Batteries’ Case
• The judgement of the Supreme Court in the Novino
Batteries’ case has had an important influence on all the
cases raising questions about advertisements. Lakhanpal
Industries Ltd. had a collaboration with Mitsubishi
Corporation of Japan for manufacturing Novino batteries.
• Mitsubishi Corporation was the owner of the well-known
trade name, National Panasonic. Lakhanpal Industries, in its
advertisements, claimed that Novino batteries were made in
collaboration with National Panasonic.
• This was technically incorrect as National Panasonic was
only a trade name and Lakhanpal Industries could not have
collaborated with a trade name. The Supreme Court ruled
Following this, the court held that, even though, literally, the
representation made by Lakhanpal Industries was
inaccurate, it could not be held to be an unfair trade
practice. In the next case, we would see how the judgement
in the Novino Batteries’ case found an application
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32. Colgate vs Vicco Case
• A television advertisement promoting Vicco toothpowder
showed another oval-shaped tin without any label. The white
powder coming out from the can was described as useless.
Colgate claimed before the Commission that this was
disparaging its product, Colgate toothpowder.
• The Commission found that the shape and colour
combination of the can shown in the television commercial
resembled Colgate’s toothpowder can. Following the Novino
Batteries’ case, the MRTPC noted that the advertisement did
not explicitly mention Colgate. In fact, there may not have
been any intention of depicting the can to be that of Colgate.
But, since the advertisement created an impression among
the viewers that the can was of Colgate, it would be a case
of disparagement.
• The Commission took into account the nature of the Indian
audience: ... disparaging remarks about the uselessness of
such toothpowder come through a mysterious invisible
voice.
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33. Cherry Blossom Case
• The principle, thus, emerged that a case of
disparagement arises only if the product in question is
identifiable.
• Identification could be explicit or drawn from the facts
and circumstances. Thus, in the advertisement of ‘Kiwi
Liquid Wax Polish,’ a bottle is described as X from
which liquid is shown dripping while from a bottle
marked Kiwi, liquid does not drip.
• From the shape of the bottle marked X and from the fact
that Cherry Blossom had a design registration for this
shape, the bottle could be identified with Cherry
Blossom and the advertisement became a case of
disparagement.
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34. Colgate Dental Cream-Double
Cream-
Protection Case
• In June 1998, Colgate introduced its new brand of toothpaste
as Colgate Dental Cream-Double Protection (CDC-DP). It gave
wide publicity through print and television that the
toothpaste was 2.5 times superior to any ordinary toothpaste
in fighting germs. Hindustan Lever Ltd. moved the
Commission alleging that the advertisements disparaged
toothpastes manufactured by it under various brand names.
It contended that a reference to ‘ordinary’ toothpaste was to
all brands other than Colgate. The Commission was of the
view that a reference to ‘ordinary’ toothpaste does not
identify any specific product.
• Thus, the Commission took the position that the claim of 2.5
times superiority of CDC-DP over any ordinary toothpaste did
not refer to any identifiable product or manufacturer. As a
result, it could not be a case of disparagement of goods.
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35. Godrej vs Vasmol Case
• The television commercial of Vasmol Hair dye opened with a lady
dyeing her hair with instant hair dye made by mixing hair dye and
developer contained in two cylindrical bottles. The bottles were
labelled as ‘Sadharan’ (ordinary). The picture then widened to
show the anguish of the lady with falling hair. The commentary
attributed this to the use of inferior dye containing harmful
chemicals. The advertisement ended with the picture of ‘Vasmol
33 Hair Dye’ which is stated to contain Ayurprash, a natural way
of blackening the hair and strengthening the roots of the hair.
Godrej Ltd. was aggrieved with the advertisement. It had products
like ‘Godrej Hair Dye’ and ‘Godrej Kesh Kala’ for dyeing hair.
Godrej’s contention was that the pictorial depiction of two
cylindrical bottles would identify it as its product. Godrej claimed
that its products were disparaged not only by insinuating that
these contained harmful chemicals but also by calling these as
‘Sadharan’ (ordinary). The Commission stated the principles as
follows:
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36. • To summarize the interpretation of the Commission,
an advertisement could disparage other products and
yet, it would not be a case of ‘disparagement’ so long
as the disparaged product is not identifiable.
• Is the law adequate to prevent unfair trade practices?
• In the Indian context, should the balance in
interpreting the law not be tilted against such an
advertisement?
• The conflicting claims would need to be assessed in
the context of the constitutional provisions on the
Fundamental Rights, privileging the freedom to speak
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37. • In the 1980s, during what has been referred to as the cola Wars
soft drink manufacturer Pepsi ran a series of advertisements
where people, caught on hidden camera, in a blind taste test,
chose Pepsi over rival Coca-Cola.
• The use of comparative advertising has been well established
in political campaigns, where typically one candidate will run
ads where the record of the other candidate is displayed, for
the purpose of disparaging the other candidate. The most
famous of these type ads, which only ran once on TV,
consisted of a child picking daisies in a field, while a voice
which sounded like Barry Goldwater performed a countdown
to zero before the launch of a nuclear weapon which explodes
in a mushroom cloud. The ad, “Daisy", was produced by Lydon
B. Johnson's campaign in an attempt to prevent Goldwater
from either winning the nomination of his party or being
selected. Another example took place throughout starting in
circa 1986, between the bitter rivalry between Nintendo and
Sega. “Genesis does what Nitendon’t" immediately became a
catch phrase following the release of the Sega Genesis (known
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as Mega Drive in PAL countries).

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46. Thank You
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