When comparison becomes defamation
Comparative advertising cases often arise from the difficulty of balancing freedom of speech and expression as guaranteed under the Indian Constitution and advertising requirements. The Monopolies and Restrictive Trade Practices Act, 1969 (MRTP), which defined ‘unfair trade practices’, did not explicitly mention comparative advertising. The Competition Act, 2002, which replaced the MRTP Act, also ignored the subject.
Article 19(1)(a) of India’s constitution protects freedom of speech and expression. This freedom embraces public speaking, radio, television and press. The question of whether ‘commercial speech’ falls under the umbrella of free speech arose in Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. The Supreme Court held that commercial speech could not be denied the protection of Article 19(1)(a) of the constitution merely because it came from business.
The court also recognised the right of the public at large to receive commercial speech. However, Article 19(2) permits the state to impose reasonable restrictions on freedom of speech and expression in the interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement.
“Section 30(1) states that comparative advertisements, as long as they are fair and accurate, do not harm consumers."
Comparative advertising was not adjudicated from a trademark perspective until recently.
Section 29(5) of the Trademarks Act provides that the use of a registered mark in an advertisement is infringing if it takes unfair advantage and is contrary to honest practices in industrial or commercial matters, if it is detrimental to the distinctive character of the trademark and if it affects its reputation.
Section 30(1) of the act reads:
“Nothing in section 29 shall be construed as preventing the use of a registered trade mark by any person for the purposes of identifying goods or services as those of the proprietor provided the use - (a) is in accordance with honest practices in industrial or commercial matters, and (b) is not such as to take unfair advantage of or be detrimental to the distinctive character or repute of the trade mark.”
It is clear that Section 30(1) creates a further ground for trademark infringement through comparative advertising. On the other hand, it also creates an exception to the owner’s right to use the mark by permitting third-party use in comparative advertising, provided it is used in accordance with honest commercial practices.
Section 30(1) states that comparative advertisements, as long as they are fair and accurate, do not harm consumers and accordingly should not be prohibited by the use of registered trademarks by third parties.
The Indian Court in Reckitt & Colman of India Ltd v. M.P. Ramachandran laid down guidelines to steer the course of comparative advertising disputes:
