In today’s fiercely competitive marketplace, brands are constantly battling for customer attention. One popular yet high-risk strategy is comparative advertising—where a brand directly or indirectly compares its products or services with a competitor’s.
When executed ethically, comparative advertising helps consumers make informed decisions. But when it crosses legal boundaries, it may lead to trademark infringement, disparagement, and regulatory penalties.
This blog breaks down the laws, risks, cases, and best practices governing comparative advertising in India.
What Is Comparative Advertising?
Comparative advertising includes any form of marketing communication that identifies competitors—explicitly or implicitly—and compares features, benefits, or prices of competing products or services.
Brands may use:
1. Direct Comparative Advertising
Explicitly naming a competitor and comparing specific features.
2. Indirect Comparative Advertising
Hinting at a competitor through packaging, colors, slogans, or visual cues.
3. Superiority Claims
Statements such as “better than the leading brand.”
4. Price Comparisons
Direct comparison of pricing between competing products.
While these techniques can boost consumer engagement, they also raise crucial legal concerns such as trademark misuse, misleading claims, and unfair trade practices.
Legal Risks in Comparative Advertising
Comparative advertising may violate multiple laws when done improperly. Key concerns include:
- Trademark Infringement – Unauthorized or misleading use of a competitor’s trademark.
- Disparagement – Making false, untrue, or exaggerated claims that harm a competitor’s reputation.
- Passing Off – Causing consumer confusion regarding the source of goods or services.
- Unfair Trade Practices – Misleading ads that deceive consumers.
- Consumer Protection – Ensuring complete accuracy and fairness in marketing communications.
Legal Framework Governing Comparative Advertising in India
1. The Trade Marks Act, 1999
Section 29(8): Prohibition of Misuse of Trademarks in Advertising
An advertiser cannot use a competitor’s trademark in a manner that is:
- Dishonest
- Misleading
- Detrimental to the trademark’s reputation
- Taking unfair advantage
This is the primary legal protection available to trademark owners against misleading comparative ads.
Section 30(1): The Defense of Honest Practices
This section provides an important exception:
Using a competitor’s trademark is permitted if:
- The comparison is honest and fair,
- It does not take unfair advantage, and
- It does not harm the competitor’s reputation.
In simple words, truthful, factual, and non-disparaging comparisons are legal.
2. Consumer Protection Act, 2019
Comparative ads that are misleading or disparaging are treated as unfair trade practices.
The Central Consumer Protection Authority (CCPA) can:
- Issue fines
- Demand withdrawal of advertisements
- Penalize endorsers and celebrities
3. ASCI (Advertising Standards Council of India) Code
ASCI requires that comparative ads:
- Be factual
- Not mislead consumers
- Not unfairly denigrate competitors
- Have credible evidence for all claims
Trademark Law in India
What Is Allowed vs. Not Allowed?
Indian courts have drawn a clear line between legitimate comparison and unlawful disparagement.
Permitted in Comparative Advertising
1. Puffery
General exaggerated praise of one’s own product.
Example: “Our soap is the best in the world.”
(Not actionable.)
2. Claiming Superiority
A brand can claim its product is better than a competitor’s—as long as it’s truthful and backed by evidence.
Not Permitted in Comparative Advertising
- Disparaging or discrediting a competitor’s product
- Making false or misleading claims
- Suggesting a competitor’s product is harmful or inferior
- Even generic disparagement of a product category can be illegal
- Excessive use of a competitor’s trademark to create confusion
Courts focus on intent, manner, and overall impression.
If the ad communicates that the competitor’s product is “bad,” it will likely be considered disparaging.
Key Case Laws in India
1. Dabur India Ltd. v. Emami Ltd. (2004)
Emphasized that comparisons are allowed, but subtle hints of inferiority amount to disparagement.
2. PepsiCo India Holdings Pvt. Ltd. v. Hindustan Coca-Cola Ltd. (2003)
Allowed truthful puffery. Pepsi’s “thanda’’ claim was considered factual, not defamatory.
3. Marico Ltd. v. Adani Wilmar Ltd. (2013)
Comparative claims are acceptable as long as they highlight superiority without degrading the competitor.
These cases establish that “I am better” is allowed; “You are worse” is not.
Recent Developments in India
1. Stricter Oversight from CCPA
The CCPA has recently required prior written consent from competitors before making comparative claims—an unprecedented shift from judicial precedent.
2. Growth of IP Divisions in High Courts
Specialized IP judges now handle trademark and advertising disputes, improving consistency and expertise in rulings.
3. Digital and Regional Ads Under Scrutiny
Regional language comparisons, social media ads, and influencer campaigns now face tighter regulation.
4. Focus on Consumer Takeaway
Courts analyze tone, intention, and consumer perception, not just the literal words used.
Practical Compliance Tips for Advertisers
Brands must ensure:
- ✔ All comparative claims are supported by scientific or market data
- ✔ Tone remains positive without attacking competitors
- ✔ Only minimal and necessary use of competitor trademarks
- ✔ Strict adherence to ASCI guidelines and CCPA rules
- ✔ Legal review of all comparative campaigns before launch
Conclusion
Comparative advertising is a powerful tool for healthy competition. It helps consumers make informed decisions and pushes brands to innovate. But in India, it must be done with utmost care.
The law draws a sharp Lakshman Rekha—a brand may promote its strengths but cannot disparage or misuse another’s trademark.
To stay compliant, advertisers should focus on:
- Truthful comparisons
- Honest practices
- Evidence-backed claims
- Respect for competitor trademarks
By staying within these ethical and legal boundaries, brands can use comparative advertising effectively without inviting legal trouble.
FAQs:
1. Is comparative advertising legal in India?
Yes. Comparative advertising is legal in India as long as the comparisons are honest, factual, evidence-based, and do not mislead consumers or disparage a competitor’s product.
2. Can a brand use a competitor’s trademark in an advertisement?
Yes, but only for fair and honest comparison under Section 30(1) of the Trade Marks Act, 1999. Misuse or misleading use of a competitor’s trademark amounts to infringement under Section 29(8).
3. What makes comparative advertising unlawful?
Comparative advertising becomes unlawful when it includes false or exaggerated claims, misleads consumers, discredits a competitor, or harms the reputation of the rival’s trademark.
4. What is considered disparagement in advertising?
Disparagement includes any statement that portrays a competitor’s product as inferior, harmful, ineffective, or worthless—directly or indirectly.
5. What laws regulate comparative advertising in India?
Comparative advertising is regulated by the Trade Marks Act, 1999, Consumer Protection Act, 2019, and the ASCI Code, which together ensure fairness, accuracy, and non-disparagement in advertisements.
Disclaimer: This blog is for general informational purposes only and does not constitute legal advice. Privacy laws may vary based on circumstances and jurisdiction. Readers are advised to consult a qualified legal professional, such as Bisani Legal, for specific advice regarding data protection, privacy rights, or related legal concerns.
