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In India, the Monopolies and Restrictive Trade Practices Act, 1984 (MRTP Act) and the
Trademarks Act, 1999, provide the basic structure governing CA. As per the MRTP Act,
CA is permissible with limitations as to unfair trade practices. From the pronouncements
of the Supreme Court of India in the case of Tata Press Ltd. Vs. MTNL & Others [(1995)
5SCC 139], it is clear that: (1) An advertisement is a commercial speech and is protected
by Article 19(1) (a) of the Indian Constitution; (2) An advertisement must not be
misleading, false, unfair or deceptive; (3) There would be some gray areas but these need
not necessarily be taken as serious representations of the fact, but only as glorifying one’s
goods. In the Indian statute, CA is permissible, with certain limitations as the Delhi High
Court summarized in Reckitt & Colman vs. Kiwi TTK. CA need not be regarded as a
comparison of the advertiser’s own products; for e.xample if an advertiser promotes its
detergent powder by using the phrase, ‘100% more washing powder’, it does not come
under CA. Price comparisons like ‘actual price of advertiser’s product is lesser than the
earlier price’, cannot be considered as CA.
The Trademarks Act, 1999 seeks to balance the conflicting interests of the rights of
registered trademark owners and a compelling consumer interest in informative
advertising. Section 129(8) of the Trademarks Act, 1999, provides that a trademark
is infringed upon by any advertising by that trademark if such advertising takes unfair
advantage and is contrary to honest practices in industrial or commercial matters; is
detrimental to its distinctive character; or is against the reputation of the trademark.
Any such act denigrating or disparaging the goods or services of another constitutes an
act of Product Disparagement (PD). There is no codified law in India to restrain
companies from involving in false promotion campaigns. The law relating to PD in
India has been mainly evolved through judicial pronouncements of Indian courts in
the recent past.
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