• Remedies against disparaging advertisement Competition Law

What are the remedies available to a manufacturer against the advertisements disparaging his goods? since MRTP Act has been repealed, are there relevant provisions under Competition Law to deal with this?
Asked 7 years ago in Business Law

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9 Answers

In Karamchand Appliances Pvt. Ltd. Vs. Adhikary Brothers & Ors. , Hon’ble Delhi High Court held that a manufacturer is entitled to boast that his goods are the best in the world, even if such a claim is factually incorrect, and while a claim that the goods of a manufacturer are the best may not provide a cause of action to any other trader or manufacturer of similar goods , the moment the rival manufacturer or trader disparages or defames the goods of another manufacturer or trader, the aggrieved trader would be entitled to seek relieves including redress by way of a prohibitory injunction

The defendant is indeed entitled to boast that its product is the latest in the market and even the best but it cannot describe either the technology or the concept used by any other manufacturer or trader in the manufacture or sale of his products as obsolete or worthless. Comparative advertisement is permissible, so long as such comparison does not disparage or denigrate the trademark or the products of a competitor. Comparison of different features of two products showing the advantages, which one product enjoy over the other is also permissible provided such comparison stops short of discrediting or denigrating the other product.”

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

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Section 29(8) of the Trademarks Act, 1999 Provides that any advertising which is not in accordance with honest practices; or is detrimental to the distinctive character, or to the repute of the mark, shall be an act constituting infringement.

At the same time section 30(1) makes comparative advertising an exception, to acts constituting infringement under Section 29. It provides that any advertising which is in accordance with the honest practices, and does not cause detriment to the distinctive character or to the repute of the trademark will be permissible and will not constitute infringement

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

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1. It's not clear what exactly the dispute is.

2. If it's mere criticism of your product by your competitors then competition act has nothing to do with this.

3. In such circumstances you can file civil suit for declaration and injunction.

4. To put more pressure you can file criminal case of defamation as well against the person which is making such remarks.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
497 Consultations

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issue legal notice to competitior to with draw the advertisment and tender an unconditional apology

2) if he fails to do so file complaint of criminal defamation under section 500 of IPC

3) contact a local lawyer

Ajay Sethi
Advocate, Mumbai
95197 Answers
7607 Consultations

5.0 on 5.0

If you are from Kolkata you may get in touch to take criminal defamation matter forward.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
497 Consultations

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This constitutes civil and criminal defamation. For criminal defamation you are required to file a criminal complaint for defamation in the court of the competent magistrate. Criminal defamation is an offence punishable with an imprisonment of up to 2 years. This apart, you are also free to file a civil suit for damages on account of the defamation suffered by you.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

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It can be termed as false advertising, it means "Any advertising or promotion that misrepresents the nature, characteristics, qualities or geographic origin of goods, services or commercial activities.

Advertising is an instrument in the hands of the people who use it.

Comparative advertisement is an advertisement where a party advertises his goods or services by comparing them with goods and services of another party. It is an advertisement in which there is specific mention or presentation of competing brand(s) and a comparison is made or implied.

Comparative advertising should not be misleading or disparaging.

The term “disparagement” means a false and injurious statement that discredits or detracts from reputation of another’s property, product or business.

Again, comparative advertising becomes harmful to the consumers, competitors and the public at large if it is deceptive, misleading, unfair and disparaging.

Until very recently comparative advertising was essentially not allowed in European countries. The European Union first addressed the issue of the comparative advertising in the late 1970’s. According to current European Legislation, comparative advertisement is allowed only if it is not misleading, compares like with like, does not create confusion and discredit or take unfair advantage of a rivals trademark..

In India,under the MRTP Act the MRTP commission resolved many disputes of comparative advertising in the nature of unfair trade practices.

The Competition Act, 2002 seeks, inter alia, to promote and sustain competition in markets, protect the interest of consumers and ensures freedom of trade carried on by other participants in market. The Consumer Protection Act, 1986, also restricts unfair trade practices through comparative advertisement. As per this Act unfair Trade practice also include the practice of making any statement, whether orally or in writing or by visible representation which-gives false or misleading facts disparaging the goods, services or trade of another person.

The enactment of the Trade mark Act, 1999 has, however, opened a new chapter in regulating unfair Trade practices in comparative advertising and preventing trademark infringement in India.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

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Any other remedies also apart from competition law and where to approach?

At a cursory glance to the above provisions, it can be said that the trademark Act does not prevent comparative advertising, if it is in accordance with the honest practices in industrial or commercial matters. On the other hand, the Act does not allow a comparative advertising which takes unfair advantage of and is contrary to honest practices in industrial or commercial matters.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

5.0 on 5.0

The advertisement has shown his product as superior to ours reflecting wrong figures. how to go about the criminal defamation? can you elaborate?

A trader is entitled to “puff” his goods, but if he turns to denigrate the goods of a rival, there comes a point where this becomes actionable. An action for slander or title or injurious falsehood can be taken only if the plaintiff proves that-

i. the statements or representations complained of were false or untrue;

ii. they were made maliciously , that is ,without just cause or excuse, and

iii. the plaintiff has suffered special damages thereby.

In order to get success in an action for trade libel the plaintiff should prove either actual damage or likelihood of actual damage. An action will not lie for a false statement disparaging a trader’s goods where no special damage is proved.

T Kalaiselvan
Advocate, Vellore
85398 Answers
2235 Consultations

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