Will The Comparative Advertisement Helps to Influence The Product?
Infringement and passing off through advertisements:
“Comparative advertisement” which discredits or denigrates the trademark or trade name of the competitor cannot be permitted. Indian attorneys and courts shall be called upon to determine the rules on advertising and comparative advertising which is catching on in India.
Certain observations of advertisement by Indian Courts:
Advertisement is a step in the process of infringement to solicit customers in the name of the impugned trademark and the advertisement is calculated to induce people to believe that such a property is meant for marketing.
As regards disparaging or defamatory statements in commercial advertisements, a tradesman is entitled to declare his goods to be the best or better than his competitors, but while declaring so he cannot say the goods of his competitors are bad so as to puff and promote his goods. Statements designed for puffing of his goods should not give rise to a cause of action to other traders or manufacturers of similar goods to institute proceedings for disparagement or defamation. Puffing one’s product even by comparing it to other’s goods and presenting their own goods as better, is not an actionable claim.
Infringement occurs only when the registered trademark is used by the rival for the purpose of indicating origin of the goods as being his.
Plaintiff and a defendant:
A comparative advertisement which does not discredit or denigrate the trademark or trade name of the competitor does not amount to disparaging the latter’s product. Though use of a registered trademark in comparative advertising constitutes infringement and the plaintiff is entitled to interim injunction against the defendant, but, where the impugned advertisement neither uses the trademark of the plaintiff in the course of trade not in any manner suggest the connection of plaintiff’s trademark with the defendant’s goods, plaintiff would not be entitled to an injunction.
Comparative advertising valid till it does not lead to disparagement:
It was clarified at the outset that comparative advertising, though new to India, is not disallowed under the 1999 act.
It is the only when such comparative advertising resorts to denigration of the rivals’ product that it becomes troublesome. In any given circumstance, in a free market, a proprietor of a trademark is well within his rights to project his product to have a comparative advantage over the rival products. He may say that his product is the best or better than the rest.
Perception of the consumers:
But, if he says that his product is the best because other substitutes are trashy, it may amount to disparagement, so long as the plaintiff’s product is not denigrated, the option to choose remains with the consumers who must be taken as reasonably well informed and observant.
The court while deciding the dispute would take into account the perception of an average individual who is reasonably well informed and observant. So long as the product of the adversary/competitor is not denigrated, it is left to the consumer to choose.