The basic legal framework governing comparative advertisement has been laid down by the Monopolies and Restrictive Trade Practices Act, 1984 and the Trademarks Act, 1999. This article aims at analyzing the concept of comparative advertisement vis-à-vis trademark infringement.
The Trademark Act, 1999 adequately addresses the issue of trademark infringement in the garb of comparative advertisement, thereby permitting comparative advertising by means of using another's trademark. The trademark law, while catering for usage of another's trademark in advertisement, draws a line to the extent of such permitted usage. The advertiser doing so cannot disparage the goods or services of another. Any such act disparaging the goods or services of another shall not only be an act constituting infringement of trademark, but also shall constitute product disparagement which falls within the ambit of unfair trade practices. It is pertinent to note that the protection provided in the Trademarks Act, 1999, is for a registered trademark. The Trademarks Act also stretches enough to protect well known unregistered marks. This gives the proprietor a statutory alternative to the common law action of passing off. Continue Reading