INFRINGING TRADEMARK REGIME THROUGH COMPARATIVE ADVERTISEMENT AND PRODUCT DISPARAGEMENT: CRITICAL ANALYSIS
AUTHOR –NIHARIKA RANA, STUDENT AT AMITY LAW SCHOOL, NOIDA
BEST CITATION – NIHARIKA RANA, INFRINGING TRADEMARK REGIME THROUGH COMPARATIVE ADVERTISEMENT AND PRODUCT DISPARAGEMENT: CRITICAL ANALYSIS, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 5 (1) OF 2025, PG. 75-87, APIS – 3920 – 0001 & ISSN – 2583-2344.
ABSTRACT
Comparative advertising came into existence to increase consumer awareness and allow consumer to make a judicial selection from plethora of choices, however under market pressures it has engaged in unhealthy practices of product disparagement and infringement of trademarks. Consequently, in the last few decades, there have been spates of litigations in this regard. As there has been a proliferation in the number of cases in the courts regarding this matter and there have been interestingly such conflicting judgments concerning the issue in the recent past, the topic seemed quite fascinating and motivating to ponder and analyse.
In the modern world, the emergence of Intellectual property rights has been to safeguard and grant exclusive rights to intellectual product like patents, designs, trademarks, copyrights etc. Out of these Intellectual rights, the laws concerning comparative advertising aspects are mainly the laws of trademarks and the general laws pertaining to unfair competition. The research undertaken lies within the broad scope of Intellectual Property Laws pertaining to the aspects of infringement of trademarks and product disparagement in the realm of comparative advertising.
Comparative advertising by means of using another’s trademark is permissible, however while doing so the advertiser 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 infringe me nt of the trademark, but shall also be an act constituting product disparagement. This paper analyses the trite law on comparative advertising and product disparagement, in relation to trademark law; in the light of Sections 29(8) and 30(1), of The Trademarks Act, 1999. Section 29(8) enunciates situations, where use of another’s mark in advertising can amount to infringement, if such use does not comply with the conditions laid down under the section. At the same time, Section 30(1) makes such use, an exception, if it is in accordance with the conditions provided under this section. The conditions given under these two legal provisions are identical. The intent of the legislature in enacting the aforementioned provisions is quite apparent: To impose the leniencies of permitted comparative advertising over the stringencies of trademark protection. This paper attempts to explain the basic framework of infringe me nt of trademark by comparative advertising. It explores the history and evolution of trademarks, disparagement of products due to comparative advertising and explores the legal framework and national & international judicial trends pertaining to it.