The incremental growth of unfair competition law in India

Abstract

Abstract In keeping with other common law jurisdictions, India lacks a unified legal basis for protection against unfair competition. There is no single legislative reference point, or standalone tort of unfair competition. India instead offers up a menu of specific statutory options, common law torts and the equitable action against a breach of confidence, to satisfy its international obligations to prevent unfair competition. There have been two noteworthy developments in recent years: (i) the tort of malicious falsehood has gradually abandoned a strict malice requirement, such that (objectively assessed) disparaging advertising is now actionable; and (ii) an emerging right of publicity, to prevent image misappropriation, is taking shape but its foundations are unclear. One (non)development also deserves closer scrutiny. A claim drafting trend has emerged whereby plaintiffs petition courts to prevent ‘unfair competition’, or ‘misappropriation’. This implies that a nominate tort of unfair competition, or one of misappropriation, exists in Indian law. However, when directly approached to create a tort against misappropriation per se, Indian courts have declined this invitation, based on compelling reasons. Both litigants and courts need to be more careful in their use of such terminology. As things presently stand, there is no tort of unfair competition, nor of misappropriation, in Indian law.