Comparative Advertisement and Infringment of Trademark

Abstract

In a comparative environment every representation of a product or service is about what others are not. Comparative advertisement is advertising where a party advertises his goods or service by comparing them with goods and services of others party. This is generally done to define or comparing his goods or may be suggesting that this is superior or good quality product. New or unknown brand benefit most from comparative advertisement. In Belgium prohibits, Netherlands, no outright prohibition, Spain adopted a more lenient position, Portugal allows, but strictly limits, Greece allows the limited use of comparative advertising. Denmark generally allows comparative advertising provided. Although the Benelux counties and Germany, who did not welcome comparative advertising, Prior to 1994, comparative advertisement was relatively uncommon in the UK. Although India has no particular law regarding comparative advertisement like USA, UK, yet Delhi High court has ruled to some extent Monopolies of Restrictive Trade Practices Act, 1984 and the Trade Marks Act, 1999 talks about comparative advertisement. A party has a right to advertise its product making commendation about its quality. Advertisement being a commercial speech which is a part of the freedom of speech is guaranteed under article 19(1) (a) of the Constitution Federal Trade Commission in US and EU both promoted comparative advertisement because it enables consumers to reach more informed and rational purchasing decisions, increasing consumer information and comprehensive of the brand in the process. If a rival uses a competitor's trade mark in a comparative advertisement for identical or similar products without the consent of the proprietor, such use would prima facia infringe the rights of the proprietor of the mark, such advertising was not permitted under the Trade Mark Act.