Law of comparative advertisement and product disparagement under Trademark Law

Shreya Khandelwal

Student of The West Bengal National University of Juridical Sciences, Kolkata

Best Citation – Shreya Khandelwal, Law of comparative advertisement and product disparagement under Trademark Law, 2 ILE IPCLR 1, 2022

Abstract

Using another’s trademark in a comparison ad is lawful, but the advertiser can’t make fun of the goods or services of another while doing so. If the advertiser makes fun of someone else’s goods or services, he is violating the trademark. He is also making fun of the goods or services of someone else, which is a form of product disparagement, too. This paper looks at the “tried and true” rules about comparative advertising and product disparagement, and how they work with trademark law. Sections 29(8) and 30(1) of the Trademarks Act, 1999, come into play here. Section 29(8) explains when it’s not lawful to use trademark of others and how infringement can happen if someone else’s mark is used in advertising without following the rules set out in the law. Section 30(1), on the other hand, makes such use an exception if the conditions provided in the section are adhered. The rules that apply to both of these legal provisions are the same. The goal of the legislature in this case was to let comparative advertising be a little more relaxed over the strict rules for trademark protection.