Compare, Not Disparage: Analysing the Grey Area in Trademark Law

Advertising one’s own products through electronic or print media is one of the best ways to reach the target population. Advertisements leave an impression on the consumer and helps them choose the product which will be the best fit. The advertisements inform the buyers about the essential attributes of the product, its quality, price and why it should be chosen. The storyline of the advertisement, the voice-over, the product, the jingle and the affixed trademarks all contribute to the decision that the consumer makes on seeing the advertisement. Companies often use the tool of comparative advertisement to brag about the qualities of their product. In doing that, there is a very thin line that, if transgressed, becomes a case of disparagement. While the constitutional guarantee of freedom of speech protects commercial advertising, there are certain dos and don’ts that the advertisers need to be careful about. The statute on trademarks and the various case laws provide principles to prevent the infringement of the trademark of the competing product through disparagement. In this paper, the author will discuss these principles and the legal extent of comparative advertisement. The paper is conceptual in nature and the analysis will be conducted with the help of the Trademarks Act, 1999 and a few English and Indian case laws. The aim of the paper is to understand the grey area whereby companies transgress and go on to denigrate the competing product through their advertisements. A study of these principles will help us understand the ways in which one can prevent infringement of others’ trademarks through comparative advertisement.