DISPARAGEMENT OF TRADEMARK

There is a better and more sought after ice or commodity. In their desire to gain more and more market share and draw customer interest to their brand, some market players go to a bolder extent to provide deceptive, misleading or denigrating information about the product or service of their rival while providing comparative advertising of their product or service and, in certain cases, even infringement of registered trademarks. For the last decade, the author has been researching the ethical implications of comparative ads.

The study shows that in the area of comparative ads, these unethical activities fall within the broad scope of intellectual property laws relating to the aspects of trademark infringement and product disparagement. The author has also previously written on many case studies and study reviews in this respect. In the present work, the author addresses four judicial cases referred to in India; each case is exclusively discussed. The purpose of the judicial pronouncement on this matter is to safeguard the right of the trademark holder, to curb market monopolies, to avoid unfair trade practises so that the interests of the consumer are largely protected. The study also provides the basis for the current legal stance in India against comparative ads. By observing the decisions provided by many Commissions and Courts, we were able to understand the functioning of the legal provision. The author discusses and analyses each case in a thorough way, one by one.

TO KNOW MORE ABOUT TRADEMARKS, WATCH THIS - 

CASE LAWS

1. Reckitt & Colman of India Ltd. v. Kiwi T.T.K. Ltd. (India) [63 (1996) DLT 29]- In this case, Reckitt & Colman produced and sold liquid shoe polish under the brand name of Cherry Blossom Luxury Liquid Wax Polish. In addition, KIWI was involved in the manufacture, growth and marketing of KIWI liquid polish. In its advertising, however, KIWI argued that its shoe polish was superior to the plaintiff as the polish of the opposite had less wax and more acrylic content and would crack and cause harm to the footwear over time. This scenario was promoted by showing a KIWI bottle that does not crack and drip and showing another bottle of polish that drips marked as brand X. This one was on the defendant's page. 

Brand X was also marketed on its outer packaging with a red blob that looked very similar to the cherry that was displayed on the bottle of the complainant. The Court held that the defendant disparaged the plaintiff's products. After that, in the adverse light looking down on them, they were prohibited from advertising the competitor's product. The Delhi High Court also added that the advertiser may do puffery or even make claims that his products are of superior quality, but this should in no way disparage or defame the competitors’ product.

2. Reckitt & Colman of India Ltd. v. M.P. Ramachandran and Anr. [1999 PTC (19) 741]- In this case, the applicant manufactures and markets blue whitener under the brand name Robin Blue. Robin Blue has a specific style as well and has a licenced logo. The defendant also began producing and selling under the brand 'Ujala' blue whitener. A package close to that of the complainant was seen in the marketing advertisement and it was found to be priced at Rs. 10. 

Since no other blue whitener product on the market was priced at Rs. 10, the Robin Blue product of the plaintiff was shown quite clearly, and therefore the product of the plaintiff was shown dismissively by implying that it is a bad purchase as it is more costly relative to its utility. It further imagined the result of the opponent being poorly bottled. The High Court of Calcutta held that the defendant had infringed because the products of the opponent were disregarded and an injunction was granted. The court also laid down some five guidelines after this judgement to direct potential infringement proceedings.

3. Pepsi Co. Inc. and Ors. v. Hindustan Coca Cola Ltd. and Anr. (2003) (Pepsi vs. Cocacola)- In this case, Pepsi filed a lawsuit against Coca-Cola for wrongfully using the trademark and in an advertisement disregarding its products. The actor asks some kinds of his favourite drink here in the ad and they all point to a drink whose packaging is very similar to Pepsi. Then the actor goes on to say that because it's so soft and meant for girls, they like it better. He notes that since it is solid, Coca Cola is for grown-ups. Then the kids are forced to try all of the drinks and later show that Coca Cola was the drinks they liked.

The packaging of the other bottle was very similar to that of Pepsi, and the words 'Pappi' were written in a similar pattern on the bottle cap. With their wrong decision, the children then feel ashamed and frustrated. The actor also discusses how the boy made the wrong decision, and that the drink of coca-cola is better. The court ruled on the grounds of disparagement and depreciation of PepsiCo's goodwill. Inc.'s trademark rights goods were violated by the defendant.

4. Godrej Sara Lee Ltd. v. Reckitt Benckiser (I) Ltd 2006 (Mortein vs. Hit)- In this case, the defendants were advertising their 'Mortein' product. The commercial stressed the aspect of killing both cockroaches and mosquitoes together. The plaintiff filed a complaint alleging that their product 'Hit' was disparaged by this commercial because it had two different products and components to combat cockroaches and mosquitoes.

The Court investigated the matter and claimed that the advertiser has the right to demonstrate its technical innovations and may accurately compare them with the competitor's product, and proposed that the advertiser should have used a single product on the screen and not the animation to compile the two to destroy two separate species of insect repellents. The other item was overwhelmingly illustrated by this aspect of the addition. The definition of honest comparative ads has been clarified by this important decision by the Court.

 THINGS TO KEEP IN MIND WHILE AIRING COMPARATIVE ADVERTISEMENT, WATCH THIS- 

While these cases are elaborated, there are a few more that are important, such as:

1. Dabur India Limited v. Emami Limited (2004)- Although there has not yet been a direct mention of the commodity, it still is Generic Disparagement
2. Dabur India Ltd. v/s. Colgate Palmolive India Limited. (2004) - Is not allowed to say that all are poor and should not disparage a whole product class or genre.
3. Dabur India Ltd. v. Wipro Ltd., Bangalore, (2006)- It can be argued that his item is better than the competitor's
4. GlaxoSmithKline Consumer Health Care Limited v. Heinz India Private Limited & Ors (2007)- Crossed the tolerable puffery boundaries
5. Colgate Palmolive (India) Limited v. Anchor Health and Beauty Care Private Ltd (2009)- The advertisement's statements were deceptive. The Court gave consumers' interests priority over untrue puffery.
6. M Balasundaram vs Jyothi Laboratories Ltd.,- To attract clause, a mere claim to dominance like one's product alone is not sufficient
7. Procter & Gamble Home Products v. Hindustan Unilever Ltd,(2010) - Puffery is quantifiable
8. Reckit Benckiser (India) Limited Vs. Naga Limited and Ors. (2003)- No legality is committed by an act to correct the public impression of rival goods.
9. Hindustan Lever Limited vs Colgate Palmolive - Each advertiser can notify the public of its product's superiority over that of its competitor

CAN HASHTAG GET PROTECTION UNDER TRADEMARK LAW? TO KNOW, WATCH THIS - 

In India, the legal situation is well settled concerning disparaging advertising for rival goods. While a trader is entitled to make an untrue argument that his goods are the best, better than his rivals, and may even compare the advantages of his goods over others' goods for that purpose; he cannot claim that the goods of his competitors are poor. In addition, with respect to trademark infringement law, the use of a trademark by a proprietor in comparative ads infringes the intellectual rights of the first proprietor.

BY - ADITI GOEL