Comparative advertisement under Intellectual Property Rights (IPR) refers to an advertising strategy where a business compares its product or service with that of a competitor to highlight the advantages of its own offering. This form of advertisement is legal under certain conditions but must not infringe upon the intellectual property rights of the competitor.
Key Aspects of Comparative Advertisement under IPR:
Permissible Comparison:
- The comparison should be honest, factual, and not misleading.
- It should relate to similar products or services intended for the same needs or purposes.
- The comparison must be based on verifiable and objective data.
- IPR Concerns Involved:
- Trademark Law: A business can mention a competitor’s trademark to identify the product being compared, but not in a disparaging or misleading way.
- Copyright Law: Using logos, jingles, or copyrighted promotional content without permission is prohibited.
- Passing Off: If the comparative ad misleads the public into believing the competitor’s product is inferior through false claims, it can amount to passing off.
- Defamation and Disparagement: Comparative ads must not demean or belittle the competitor; otherwise, they risk civil suits for defamation.
Indian Legal Position:
- Permitted under Section 30(1) of the Trademarks Act, 1999, which allows the use of a registered trademark for comparative advertising, provided the use is honest and does not take unfair advantage.
- Courts in India have held that comparative advertising is allowed, but misrepresentation and denigration are not.
Example:
A detergent brand saying “cleans better than Brand X” with evidence to support the claim is legal. However, saying “Brand X is harmful or useless” without basis can be considered disparagement.