You can say your product is the best in the world. You can even say it is better than the market leader’s, and name them. What you cannot do is say theirs is bad. That line — puffery on one side, denigration on the other — is where comparative advertising law lives.
What comparative advertising is
Comparative advertising compares products or services in the same field, typically on price, quality and durability, to increase a brand’s market visibility. It is a legitimate and often useful practice: consumers benefit from genuine comparison, and courts have consistently recognised commercial speech as protected — the Supreme Court in Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. held that commercial advertising falls within the freedom of speech and expression under Article 19(1)(a).
The statutory framework
Two provisions matter.
Section 30(1) of the Trade Marks Act, 1999 permits use of a registered mark in comparative advertising, provided the use:
- is in accordance with honest practices in industrial or commercial matters; and
- does not take unfair advantage of, or is not detrimental to, the distinctive character or repute of the mark.
Section 29(8) is the mirror image, treating advertising as infringing where it takes unfair advantage of and is contrary to honest practices, or is detrimental to the mark’s distinctive character, or against its reputation.
So the same two concepts — honest practices and damage to distinctive character or repute — define both the permission and the prohibition. Fall on the right side and comparative advertising is lawful; cross the line and the identical facts constitute infringement.
Puffery versus denigration
Puffery is making generous, even extravagant claims about your own product. It is permitted, and courts have long accepted that a trader may declare their goods the best in the world even if the boast cannot be substantiated. Consumers understand advertising hyperbole.
Denigration is portraying a competitor’s product negatively. That is not permitted, and it is the point at which comparative advertising becomes actionable.
Indian courts have distilled the distinction into a workable set of principles: a trader may puff their own goods even untruthfully; may claim their goods are better than a competitor’s; but may not say the competitor’s goods are bad, since that amounts to defaming them. If, while comparing, the advertisement disparages the rival’s product, the rival has a cause of action.
The practical test the courts apply looks at the intent, manner and storyline of the advertisement, and the overall impression it leaves — not an isolated line. An advertisement whose message is our product is superior is defensible; one whose message is theirs is inferior, unsafe or ineffective generally is not, even where every factual claim can be supported.
Beyond trademark law
Two other constraints operate alongside.
The Advertising Standards Council of India (ASCI) Code contains its own provisions on comparative advertising and disparagement, and complaints there are quicker and cheaper than litigation.
Consumer protection law also reaches misleading advertisements, with the Central Consumer Protection Authority empowered to act against them — a route that has become considerably more active in recent years.
What advertisers should do
- Compare on verifiable, specific attributes — price, a measurable performance figure — rather than general quality.
- Substantiate every factual claim before publication, with testing that would stand up in court.
- Avoid visual denigration, which is where many campaigns fail: the script may be defensible while the imagery — a rival’s distinctive packaging shown failing, discarded or mocked — is not.
- Remember the mark is protected in use as well as words — showing a competitor’s trade dress in a negative light engages the same provisions.
Comparative advertising should ultimately serve consumer welfare rather than function purely as a profit-driven tactic, and traders must exercise real caution when referring to a competitor’s trademark.
The takeaways
- Section 30(1) permits comparative advertising on honest practices.
- Section 29(8) makes it infringing where it damages distinctive character or repute.
- Puff your own product freely; never denigrate the rival’s.
- ASCI and consumer protection law apply alongside trademark law.
Frequently asked questions
Is comparative advertising legal in India? Yes — Section 30(1) of the Trade Marks Act permits use of a competitor’s registered mark in comparative advertising, provided the use accords with honest practices and does not damage the mark’s distinctive character or repute.
What is the difference between puffery and denigration? Puffery is exaggerated praise of your own product, which is permitted. Denigration is portraying a competitor’s product as bad, which is actionable.
Can I name a competitor in my advertisement? Yes, provided the comparison is honest and does not disparage their goods or take unfair advantage of their mark’s reputation.
Does it matter if my claims are factually true? True claims help, but an advertisement can still be actionable if its overall manner and impression disparage the competitor’s product.
Useful official resources
- The Trade Marks Act, 1999
- Advertising Standards Council of India
- Central Consumer Protection Authority