Comparative Advertisement is a relevant field of IPR which is now gaining importance due to the competitive attitude of various traders existing in the market economy. Comparative Advertising is an advertisement where a particular product specifically mentions the name of a competitor product by means of advertising to show that why the competitor product is inferior to their product by naming it.

In this very era of fast economy, competition, promotions and battle between the brands, comparative advertisement is very much relevant topic and interesting phenomenon to discuss upon. The Indian Economy starts which has led in a plethora of brands running in the market which results in the competition with each other to capture a large portion of the market. Comparative advertisement may be one of the best ways to the customers to rely on the information shown in the advertisement so the advertiser must be careful while narrating the advertisement as in many possible times it may lead to the clash of legal and ethical principles.

We are living in the time were advertisers are continuously trying to dominate each other fame by advertising their product and stating that their product is better than other products in the market. Today, advertisement become a very serious and big business were all brands are competing with each other by top notch marketing strategies and constant comparison of merits and demerits of other brands to prove that one brand is better than the other. The main motive behind such marketing scheme is to create more and more consumer demand and therefore more demand will arise and therefore more sale hence more profit to the advertiser same as a chain reaction. Advertisement build up psychology in the minds of the consumers to understand that what goods are appealing which results in the consumers getting attracted towards the more advertised products than the less advertised goods. Advertisements create a brand image which intends to create a brand loyalty amongst the users of the particular brand.

Advertising has become a widespread phenomenon; talking from a small vendor shop to the high multi-national company everybody is advertising their products from small to large scale. From distributing pamphlets, drum beating to you tubing and surfing internet, advertising has definitely evolve with the time. It has become the business of making profit with a main purpose to stand-out amongst the other in the eye of public and making money by same. Advertisement now became the life blood of the market competition.

It can be seen that the advertiser declares his good to be the best in the market even though the declaration given by him was untrue. For the purpose of proclaiming that his product is best in the market he may be tempted to compare the advantages of his good over the goods of the others. However, while saying that his good is better than the competitors good so can one is allowed to say that the competitor goods are bad or not? Another issue is that whether the seller can use the competitor's trademarks in advertisement which is comparing the relative qualities of the competitive goods, will this amount to trademark infringement?
This paper allows analyzing the laws involved in the concept of comparative advertising in relation to the trademark infringement. Finally from this research topic the researcher will come to know how far this topic on CA has been taken up by the Indian courts and its impact on the advertisers and the consumers.

 

History And Evolution of Comparative Advertising

The history of comparative advertising started with the history of economy and commerce. It was very common for the trader to compare the qualities of his product over the products of his competitor and promote his own product by doing comparison. Initially, comparison was in the form of actually listing out the characteristic/features of a particular product and comparing the same with another by listing the features. But when the traders started crossing the limits of comparative advertising and started to compare and deprecate the competitor's product at thet time the law came into force.[1]

A survey of advertisements reveals that there are three categories into which all advertisements fall -
1. NC (Non-comparative advertisements) - Advertisements that refer to the only one brand of product and make no reference to competing goods directly or indirectly.
2. IC (Indirectly comparative advertisements) - These are those advertisements that refer only to attributes of one brand of product but indirectly refer to the attributes of rivals or competing goods.
3. DC (Directly Comparative Advertisements) - The Advertisements which directly compare the attributes of one product with the attributes of specifically named or recognizably presented competing brand.[2]
In some countries, neither IC nor DC is allowed whereas in others both are permitted. The UK is an example of a country that allows both (within limits) whereas Germany is an example of one which allows neither IC nor DC.

If we talk about the benefit/advantages of Comparative Advertisement then we can say that it benefits the consumer, as it usually compares the price, value, quality or other merits of different products, thereby enhancing the awareness of a consumer. However the improvement of consumer's knowledge can only be achieved for as long as the advertising doesn't contain misinformation; which is always a risk if the education of consumers is entrusted to entities with vested interests.

Comparative Advertisement can improve the quality of information available to consumers and enables them to make well founded and more informed decisions relating to the choice between competing products. Based on this information the consumers will be well-informed informed and therefore make efficient choices.

Comparative Advertising can also play the role of a salesman who helps to remove and clarify doubts about a brand. A person who has already gone through the various buying processes like need, recognition and information may be stuck because he is not able to make a comparative evaluation between the brands on which he has zeroed in. It is at this stage that comparative advertisement helps him to make a better decision. It gives very compulsive reasons to be a potential consumer to buy a product[3].

Indian statute has not defined the term "Comparative Advertisement" but the UK Regulations define Comparative Advertisement as any advertisement which "explicitly or by implication, identifies a competitor or services offered by a competitor"[4].

In the further ongoing chapters, Comparative Advertisement and its relation with Trademark Infringement shall be dealt with in detail. The researcher shall also be describing and analyzing the statutory frameworks and leading judgments of various countries including India, UK, USA and also analyze the concept of comparative advertisement from consumer's prospective.

Comparative Advertisement And Its Relation To Trademark Infringement- An Analysis of The Indian Statute.
In this chapter, the researcher shall be dealing with the Indian constitutional a legal perspectives for comparative advertisements, relationship between Comparative advertisement and Trademark infringement.

Comparative Advertisement As The Constitution of India
Article 19(1) (a)[5] of the constitution of India talks about right to freedom of speech and expression and the advertisements can argue for that. So, it is important to analyze Article 19 (1) (a) of the constitution with relation to the comparative advertisement. The freedom under this article is available for public speaking, radio, television and press but this has certain limitations to it by the state under article 19(2)[6] of the constitution of India.
Now whether commercial speech can be protected under Art 19(1) (a) of the constitution or not.

In the Case of Hamdard Dawakhana (Wakf) Lal v. Union of India[7], the SC held that the sale of prohibited drugs was not in the interest of public, and that the advertisement of such drugs therefore "could not be speech" within the meaning of speech and expression under Article 19(1) (a) of the constitution. The Supreme Court held that in this Case said that the advertising by itself would not come under Article 19(1)(a) of the constitution. Advertisements for non prohibited drugs would be protected as free speech but certain advertisements which are prohibited by various statutes, codes, rules and regulations in India would not be considered as protected. This is for the reason that Article 19(2) permits reasonable restrictions on the freedom of speech and expression guaranteed under Article 19(1) of the constitution.

Hence any prohibition or restrictions on advertisements as stipulated by various statutes, codes, rules and regulations may be considered as reasonable restriction.
 

Codified Sources: ASCI

The basic principles of advertising law are regulated by the Advertising Standards Council of India (ASCI) which is a self regulatory body and lays down a code to be followed by the advertising industry.
With respect to Comparative Advertisement the code lays down as follows-
(i) Advertisements comprises of comparisons with manufacturers or suppliers or with other products including those where a competitor is named are permissible in the interest of vigorous competition and public enlightenment provided that-
(a) It is clear what aspects of advertiser's product are being compared with what aspects of competitor's product.
(b) The comparisons are factual, accurate and capable of substantiation.
(c) There should be not any likelihood of consumer being misled as a result of the comparison, whether about the product advertised or that with what it is compared.

(ii) Advertisements shall not make unjustifiable use of the name or initials of any other firm, nor take unfair advantage of the goodwill attached to the Trademark or symbol of another firm or its product or goodwill acquired by its advertising campaign.

(iii) Advertisements shall not be similar to any other advertiser's earlier run advertisements in general lay out, copy, slogans, visual presentations, visual or sound effects so as to suggest plagiarism[8].
 

Comparative Advertisement And Trademark Infringement:

What does trademark means? Trademark means a mark which is capable of being represented graphically and which is capable of distinguishing the goods and services of one person from those of others and include shape of goods, their packaging and the combination of colors[9].

The main objective of a trademark is to distinguish the good of one person from another which allows the customer to identify the goods and their origin. In Case if the advertiser uses a competitors' trademark to make a comparison between his goods and those of a competitor and in such a process disparages them, then such an act by the advertiser would not only invoke issues relating to comparative advertisement and product disparagement, but would also invoke issues related to trademark infringement.

Coming towards Trademark Infringement the basic issue regarding TM revolves around consumer confusion i.e., "Is one mark is so close to another that an ordinary purchaser is likely to get confused, mistaken or deceived regarding the source of goods or services?"

To come or make a judgment with regard to infringement the courts would like to know what it is in consumer's mind; how he is reacting to the two marks and thus whether he is likely to be deceived. The consumer confusion has been in most circumstances the major issue with regard to trademark infringement but there are two other sources of confusion which relate to the trade rather that the consuming place: Trade Confusion and passing off[10].

Evidence of trade confusion has been considered very valuable infringement Cases since members of the trade would not be expected to be deceived or confused as readily as ordinary customers. Evidence of "passing off" is when the trader knowingly and deliberately attempts to pass one product off as another is also considered valuable in law suits.

The main purpose of a Trademark is to distinguish the goods of one person from another. Therefore a trademark enables a consumer to identify the goods and their origin. Hence, in Case if an advertiser uses a competitor's trademark to make a comparison between his goods and those of his competitors and in the process disparages them. Such an act on the part of the advertiser would not only invoke issues relating to advertising and product disparagement but also invoke issues relating to TM infringement.
 

Legal Provision In India Relating To Comparative Advertisement

The Monopolies and Restrictive Trade Practices, 1984(MRTP Act) and the trademarks act, 1999 provides the outline on which comparative advertisement works on. The Trademarks Act, 1999 comparative advertising is permissible with certain limitations as to unfair trade practices. The Trademarks Act balances the conflicting interests of the rights of the registered mark owners and a compelling consumer interest in informative advertising. S.29 (8) of Trade Marks Act provides that a registered trademark is infringed by any advertising of that trade mark if such advertising takes unfair advantage and is contrary to honest practices in industrial or commercial, is detrimental to its distinctive character, or is against the reputation of the trademark.

S.30(1) provided an escape route for what would otherwise have been an infringing act u/s 29, if the impugned use of the mark is in accordance with "honest practices" in industrial or commercial matters.

Relationship Between Comparative Advertising And Product Disparagement In Trademark Law
Use of Trademark- Disparagement of Goods
Section 36A of the MRTP Act show Cases the issues on unfair trade practices which ultimately lead to the cause of disparagement of goods and services of another person. There is no specific definition of disparagement of goods.

According to Black's Law Dictionary the word 'disparage' means to connect unequally; or to dishonor (something or someone) by comparison; or to unjustly discredit or detract from the reputation of (another's property, product or business); product or business[11]. That implies 'disparagement' is a false and injurious statement that discredits or detracts from the reputation of another's property, product or business.[12]
Comparative advertising is supported on the basis of the argument that advertising is commercial speech and therefore should be protected by Article 19(1) (a) of the constitution.[13] However, freedom of speech and expression does not permit defamation and it would be wrong to say that an advertiser has the liberty to disparage the product of his competitor without any check, under the garb of freedom of speech.[14] It is altogether a different thing to say that your product is better and that to his product is inferior to your product, still while asserting the latter, the hidden message may be the former, but that is inevitable in the Case of comparison. While comparing two product will, but naturally have to be shown better.[15]

Product disparagement is not limited to the comparative advertising but also in the act on the part of a third party could constitute product disparagement e.g. a newspaper article criticizes a particular good and in the process disparages it.[16] Disparagement by a third party is not an uncommon phenomenon.
 

Landmark Case Studies Related To Comparative Advertising In Indian Jurisdiction

There are various Cases relating to comparative advertising under MRTP Act and Trademark Act, 1999 which are being discussed below:

Case 1: Reckitt and Colman of India Ltd v. Kiwi T.T.K Ltd[17]
In this Case the plaintiff is Reckitt and Colman of India Ltd and defendant is Kiwi T.T.K Ltd, the advertisement war is between two liquid polish companies. The defendant while promoting the product through the electric advertisement state "KIWI" on one side and the white surface "OTHERS" on the other side with their respective liquid wax.

The advertisement has showed the wax which was used to write "OTHERS" dripped from the surface while the "KIWI" one would stick properly. The bottle named "Brand X" used to write "OTHERS" was of the same shape as that of the registered designed bottle of Cherry Blossom coupled with a red blob on top of the bottle surface, which was symbolic of Cherry. This advertisement was used vehemently both in electronic media as well as 'the point of sale posters' at every market and shops that sold this product. So, a plea for injunction was filed by the plaintiff for stopping this advertisement of the defendant company.

The court held that the defendant was disparaging the goods of the plaintiff and was told to restraint from advertising the competitor's product in a disparaging manner[18].

The Delhi High Court also added that the advertiser can puff the goods of make statements that his goods are of superior quality but this should not disparage or defame the repute of the competitor[19].

Case 2: Reckitt and Colman v. M.P. Ramachandran[20]-
The plaintiff's were engaged in the manufacturing of blue whitener (Ujala) under the name of 'Robin Blue' for which they had a designed registration over the bottle. The defendants who were in the same business, issued an advertisement comparing their products to others stating that not only was their product, but also more effective. In this depiction they compared their product to a bottle having the same shape and pricing as that of the plaintiff's product, the Calcutta High Court laid down five principles in aiding the grant of injunction in such matters, stating that-
A tradesman has to declare his goods to be the best in the world, even though the declaration is untrue.

He can also go on to say that my goods are better than his competitor's, even though the declaration is untrue.

For the purpose of saying that his goods are the best in the world or his goods are better than his competitors he can even compare the advantages of his goods over the goods of others;

He, however cannot, while saying his goods are better than his competitors, say that his competitor's goods are bad. If he says such, he slanders the goods of his competitors. In other words we can say that he defames his competitors and their goods, which is not permissible.

If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the Court is also competent to grant an order of injunction restraining repetition of such defamation.

Case 3: Pepsi Co. Inc. v. Hindustan Coca Cola Ltd[21]
The court stated that in order to decide questions of disparagement, the following factors have to be kept in mind, namely[22]:
1. Intent of the commercial;
2. Manner of the commercial;
3. Story line of the commercial and the message sought to be conveyed by the commercial.

It ruled that if the manner in showing the commercial is only to show that the product is better without derogating somebody else's product, then no actionable claim lies. But if the manner of the commercial is ridiculing or condemning the product of the consumer then it amounts to disparagement.

Case 4: M Balasundaram v. Jyothi Laboratories Ltd[23]
In the Case ofM Balasundaram v Jyothi Laboratories Ltd., (Regaul v. Ujala), the commission explained the meaning of section 36 A of the MRTP Act. In this Case the advertisement is promoting Ujala liquid which says that two-three drops of this brand were adequate to bring striking whiteness of clothes while several spoons of other brands were required for the same effect. A lady holding a bottle of Ujala was looking down on another bottle without any label, exclaiming 'chhi, chhi, chhi!' in disgust. The manufacturers of Regaul brand complained to the Commission that the advertisement was disparaging its goods. The commission held that in order to bring home a charge under clause (x) of Section 36A (1)[24]it must be established that the disparagement is of the goods, services or trade of another the words 'goods of another person' have a definite connotation. It implies disparagement of the product of an identifiable manufacturer.

A mere claim to superiority in the quality of one's product by itself is not sufficient to attract clause (x). In the advertisement, neither did the bottle carry any label nor did it have any similarity with the bottle of any other brand. The Commission, thus, was of the opinion that it could not be classified as a Case of disparagement of goods.

Case 5: Colgate Palmolive India Ltd v. Hindustan Unilever Ltd (The famous Colgate v Pepsodent war) -
In the advertisement of the New Pepsodent, they disclosed that their product is 102% better in terms of anti-bacterial activity as compared to the leading toothpaste available in the market. In the TV add, samples of saliva are taken from two boys; one who has brushed with the New Pepsodent toothpaste and other brushed with the leading toothpaste. The experiment was shown as containing maximum amount of germs in the saliva of the latter toothpaste. And when the boys were asked as to with what did they brush there in the morning, one said Pepsodent while the response was muted in the other Case. But his lip movement and the jingle used in the muting made it very obvious that the boy was referring to Colgate. As Colgate has been synonymously been used for a toothpaste, it was evident that the leading brand referred to Colgate. This ultimately led to the disparagement of the goods of Colgate.

Case 6: Dabur India Ltd. v. Colgate Palmolive India Ltd.[25]
The facts delineated an open-shut Case of clear disparagement. The sum and substance of the commercial showed a film actor rubbing the plaintiff's dental powder on the surface of a purchaser's spectacles, leaving marks and depicting it to be akin to sandpapering. The advertisement went onto to show how the defendant's product was sixteen times less abrasive than the plaintiff's product and thereby less damaging to the teeth. Using the principles laid down through judicial precedent in the pre-Trademarks Act era, the court stated that this was a straightforward Case of disparagement, which could not be allowed under any circumstances.[26]
Case 7: Dabur India Ltd. v. Emami Limited[27]

In the judgement the court ruled that even if there is no direct reference to the product of a competitor and only a reference is made to the entire class in a generic sense, a Case of disparagement in such circumstances is still possible. As per the given facts, an advertisement issued by the defendant stating that consumers should not use "Chayawanprash" in the summers but use the defendant's product, which was more effective in the summer months. Although no insinuation was specifically made against the plaintiff's product, the court went onto issue an injunction stating that the commercial denigrated Dabur's product.

Case 8: Dabur India Ltd. v. Wipro Limited, Bangalore[28]
The judiciary added a new dimension in this Case to the existing tests for determining disparagement. The court stated that in comparative advertising, the degree of disparagement should be such that it would be tantamount to, or almost tantamount to defamation. Only at such levels of disparagement would the court interfere with the marketing strategies employed.

Case 9: Britannia v. Unibic Biscuits India (2007)[29]
Unibic India launched a biscuit named 'Great Day' along with its tag line - Why have a Good Day, when you can have a Great Day! This was a direct comparison to Britannia's Good Day biscuits which states that consumers must not try any mere biscuit when Great Day biscuit is available. The plaintiff alleged that the defendant has infringed their registered TM 'Good Day' and in turn has tried to emphasize on it through their tagline. Bangalore City Civil Court on December 12 in 2007 led to the grant of an injunction to the defendant for disparaging Good Day biscuits by exaggerating the facts and making an impression that no other facts hold true. The Court looked at three aspects while reviewing this Case which includes examining the intent, the manner the commercial (story line) has been promoted and the message that has been communicated to the public. Therefore the court granted injunction.[30]

Case 10: Kingfisher v. Jet Airways (2007)[31]
In contrast to Unibic's Great Day Case of injunction, Kingfisher airlines came up with a similar advertising campaign without being subject to any injunction. Jet Airways and Kingfisher started flights to New York on a daily basis. To initiate their campaign, Jet put up a hoarding this displayed the tag line 'We've Changed' which was immediately competed by Kingfisher airlines by putting up a hoarding just above Jet Airways hoarding saying 'We Made Them Change'. Although there was no disparagement of the product nor there was any use of Jet's TM on Kingfisher's hoarding, still Jet could file for injunction as it was directly relating to them for exaggeration of facts. But Jet immediately put off their hoarding which was a good move as the present law doesn't have any law in place for Jet or any other company in such situation to sue Kingfisher.
 

Comparative Study of Foreign Laws

The prevailing legal system regarding comparative advertising in other countries will be compared with the Indian laws and suggest the difference between both of them.

USA Jurisdiction:-
In USA there is a concept of promoting consumer welfare, promotion of competitive market and freedom of free speech and expression. Therefore considering all these in mind comparative advertising is a healthy topic over USA markets and also justifiable means and protected under freedom of speech and expression laws. The Federal Trade Commission (FTC)[32] Policy Statement, 1960 states that under CA, comparison of advertisements of different competitors in market with their name and their product is a very favourable act and so nothing about unfair trade practice has been mentioned in it. FTC focused on the benefit which advertiser and advert agencies with get regarding the issue of CA. But clarity was needed in FTC to deal with the negative consequences of unfair practices.

The US TM Act (Lanham Act[33], 1946) later amended in 1988. This act primarily sought to protect consumers from confusion as to the source or sponsorship of goods and services available in the market place[34].
There is no guidance regarding the dealing with false advertising and product disparagement as a part of CA sub section 43(a).

Case: Tommy Hilfiger Licencing Inc. v. Nature Labs LLC [2002][35]
In this Case Nature Labs is a shop which deals with the pet perfumery named 'Timmy Holedigger' as his trademark and the slogan was also incorporated for its commercial as ' If you like Tommy Hilfiger, your pet will love Timmy Holedigger'. So Tommy Hilfiger filed a suit against Nature Labs contending that they were infringing their rights of TM by unfair means and hence it would result in TM infringement and commercial fraud.

The court held that in USA similarity doesn't amount to infringement of TM . In this Case Nature Labs used the TM as a means of entertainment purpose so that they can make a public laugh. Therefore it was claimed to be a fair practice as used the concept of freedom of speech. Hence, rejected the plaintiff's charge of infringement against the defendant.

UK & European Jurisdiction:-
The TM Act of UK 1938 was not a very good move by the court to formulate the concept of CA, but the TM Act of UK 1994 makes good move regarding the misuse of CA by means of TM. The UK Act of 1994 was very liberal on the view of CA and UK parliament stated that the government viewed CA as a legal and legitimate tool that should be adopted in marketing that ultimately helps in the process of stimulating competitive atmosphere and educated consumer. The prime object of the UK to allow CA as a fair means of promoting product is, as a registered TM can be used to identify them there- by information prospective customers about the products of the competitors.

Case: Barclays Bank v. RBS Advanta [1996][36]
In this Case RBS Advanta distributed a brochure containing a comparative table of the fees and interest rates of different credit card companies including Barclaycard Visa which is a registered mark of the plaintiff. So, the plaintiff considered this act of defendant has infringed their mark.
The court held that the objective of the defendant act of using the mark of plaintiff was for honest practices to inform consumers. The defendant also told that their comparative chart gave a better deal to the customers. Hence CA was allowed by the court.

Case: British Airways plc and Ryanair Ltd[2001][37]
Ryanair had prepared a CA by means of a banner add which had the following written on it; 'EXPENSIVE BA….DS' and above all on the top part of the banner a comparison on the pricing was made which said that BA's air fare was 5 times costlier then Ryanair which in reality it was only 3 times costlier. So, British airway (BA) alleged that Ryanair had infringed TM of BA.

Although Ryanair made a wrong statement of comparison the High Court felt that it did not infringe the plaintiff's TM as the final result would be the same as indicating that BA was expensive. But the Advertising Standards Authority (ASA) stated that the statement did make false offenses against BA.

ASA is now making inroads to be keener on taking action against CA issues more than the courts.
 

There Are Two Main Sources For The Rules of Comparative Advertising Under Tm Act 1994

European Commission (EC) Directive on CA dealing with Misleading and Comparative Advertising Directive (MCAD) - U/Art of European Court of Justice (ECJ) indicate the following criteria to be allowed:-
# Not to be misleading
# Compares the products meant for the same purpose.
# Objectively includes primarily price as a comparable item.
# Doesn't create confusion.
# Doesn't discredit or disregard the competitors TM or trade name.
# If the products have a origin the same should be identified in the advert.
# Does not take unfair advantage of the reputation of the TM/Trade name/designation of origin
# Should not present goods as imitated goods or replicas of goods.

Thus, the European Union- Comparative Advertising Directive (EU-CAD) promotes CA as a healthy competition between traders. Both CA and TM law follows unfair advantage concept.

Case: O2 Holdings Ltd & O2 (UK) Ltd. V Hutchison 3G Ltd.[2006][also known as Bubbles Case[38]]
In this Case O2 is a telecom service provider lost its TM claim against Hutchison 3G which is also a mobile service provider for the use of a bubble imagery in their CA. O2's Case was dismissed on the grounds that the CA of Hutchison was not at all creating confusion in the minds of the consumers. Based on the EU directive as stated above, H3G was not infringing as the use of CA was a course of their trade which need not have TM owners' consent having similar or identical product line as the ones of the registered TM. These three were considered as the parameters for checking whether the use of TM by third parties is justified or not (Cristina Romano, 2008). Court of Appeal for England and Wales also added that such use of trademark which has been registered and used by the Competitor is not trademark infringement.

Case: L'Oreal SA & ors v. Bellure NV & ors [2007][Smell-AlikeCase][39]
This Case was on the similar lines as the above free-riding concept based on TMD but it was looked upon into the CAD. Bellure started importing, distributing and selling perfumes having similar fragrances in comparison to L'Oreal's perfume. They also prepared a comparison table indicating the list of the luxury brands available with them and L'Oreal which indicated that their brands had similar smell to the latter. But the smell-alike perfumes did not harm the sales of L'Oreal neither affected the sales of the defendant and also did not confuse people that the smell-alike perfume was that of L'Oreal.

The Court held that the packaging of two products of the defendant and the comparison listed in the table gave rise to infringement. This was referred by the Court of Appeal to ECJ which examined the unfair advantage issue in light of the CAD. But the CAD also doesn't explicitly indicate that Bellure's goods have been imitated or made replica with reference to L'Oreal's perfumes just by seeing the comparison made. An explicit statement that the product has been copied needs to be present to imply copying. Hence as L'Oreal has not been affected by the Bellure they cannot be infringing based on unfair advantage unless L'Oreal claims that the economic behavior of the consumers has been changed.

2. The Trade Mark Derivative (TMD) provides protection of TM to those member states registered in the UK register.
Case: Intel Corporation Inc v. CPM United Kingdom Ltd (2008)[ Free-Riding Case][40]
In this Case, Intel filed an application to sue CPM for using 'Intel mark' as their mark there by claiming that the plaintiff has infringed Intel's TM. The UK court knew that Intel had a good reputation in the market for their mark Intel relating to computer related products. It was considered that the marks used by CPM was similar but applied to different category of products and hence didn't indicate any commercial connection and did not indulge in unfair practice with Intel based on the TMD.

The court referred this Case as 'free-riding' stating that CPM has got an advantage and benefit by using Intel's well-known mark as a part of their mark in their trade but this has not affected the trade of Intel as they belong to different category of goods and services. Therefore cannot be termed as taking unfair advantage.
 

Comparative advertising with honest trade practices permitted by court [ECJ]

Case: Dior v. Evora[41]
The Case is concerning the principle of exhaustion and parallel imports, Dior distributed its perfumes across selected distribution channels and has TM for its illustrations of the packaging and copyright in the design and packaging of the bottles. Evora was not the selected retailer but acquired legitimate products by parallel imports and started advertising the same as carried out by other retailers. Dior claimed that Evora was not a selected retailer and was infringing their use of the mark by advertising which affected the reputation of Dior. But Court held that as per Article 7(2) such CA must be permitted once the rights of the TM owner have been exhausted after the first sale or first distribution from the right holder by his consent.
 

Comparative advertising with dishonest trade practices not permitted by court [ECJ]:-

Case: Primark Stores Ltd. v. Lollypop clothing Ltd.[42]
In this Case Lollypop started using two marks of Primark namely Denim Co on the sewn labels and Primark on the swing price tags when they acquired the supply of jeans from the suppliers of Primark based on Primark's specifications as part of the order placed by them and in the process of making up the order, Lollypop used the tags and labels of Primark in the manufacture of different kind of jeans which it claimed to be Primark's as they were produced based on their specification. The plaintiff sued the defendant on the basis of infringement although the defendant argued that according to article 10(6), they could use the proprietor's TM. But the ECJ argued that the defendant may not have counterfeited the goods but since the goods named as Primark by Lollypop were not Primark's goods, subsection 10(6) did not apply either and hence were claimed to be infringing.

Case: Aktiebolaget Volvo v. Heritage (Leic) Limited[43]
The ex-dealer of Volvo had used a sign with an expression 'Independent Volvo specialist' stressing on the word Volvo outside his premises and claiming to be still an authorized dealer of Volvo. However the Court declared this act as infringement due to lack of honesty and deceptiveness in the use of the mark shown.

China Jurisdiction:-
The CA laws in China are totally different as compared to the laws existing in USA, UK and India although the laws in USA, UK and India are not the same. This implies that the TM owners need to be very careful about advertising in China. Yes, it is. Aggressive campaigns which could probably be encouraged by other countries but they are not acceptable in China. The laws on advertising are generally focusing on the competitors' interests than consumers' welfare which China is opposing off. According to article 7 and 12, CA is not allowed as it firmly tries to promote the advertisers products and trying to prove them better than their competitors.

Critical Analysis
After the detailed study of the concept of Comparative Advertising it is observed that there exists two forms of references one is positive reference and another one is negative. Positive reference implies that one competitor claims that his products are good as that of the competitor's products. This implies that when the goodwill and reputation of a well-known mark exists, misappropriation of that trademark is very general. The negative reference implies that one competitor claims that his product is better than those of others and competitor's goods are criticized resulting in disparagement of goods. Both the references give unauthorized access to comparing the advertising campaigns or promotions of each other's product. Every jurisdiction deals with various Cases of comparative advertising depending on their own discretion and based on the existing laws on the concepts of misleading and discrediting the competitor's goods. Some countries accepts that indicating the goods to be superior or unique or best than the other amounts to misleading until they proves to be justified while others consider such exaggerations and misrepresentation to be permitted. With respect to the misappropriation and discrediting some countries believes in providing liberal views on laws until found to be untrue or disparaging will allow CA. while in other countries businessmen who don't follow honest practices, CA is banned and is strictly taken action. In few of the countries using the trade name or the TM without the consent is considered as discrediting. Even if the comparisons are true they are not encouraged to use them in certain jurisdictions. Initially, CA was forbidden or was considered as unfair competition but today this situation has changed and is changing slowly. In present, proper representation of facts even if compared against a competitor are welcomed by the courts. CA is seen positively as a means of providing a study of reference which could help the consumers in knowing the true facts of various products and be careful in purchasing. In this way there will be transparency of data which will help the consumers in lowering their information search costs and conduct a god buy.

Despite the fact that the views on CA in various countries as perceived by courts have become positive, it's a challenge for the different jurisdictions to draw a line between what is acceptable and what is not based on the present laws available in their countries. And if need arises the laws need to be regulated with newer laws by resulting in satisfying honest trade practitioners and supporting fair trade.

Conclusion/Suggestions
It can be concluded by the above discussions that in the changing context of proliferation of advertisements, there is a need for law to be further strengthened in its application in India for the disputes arising out of comparative advertising. The judicial decisions are being played an important role in determining the disputes arising out of comparative advertising, but they seem to set an inadequate precedence. The question is not whether a consumer has adequate remedies and protection against such unfair trade practices of corporations but whether the warring corporations have adequate law against unfair trade practices, and justice delivery system to have some 'rules of the game for competing amongst themselves[44]. The conclusion suggests certain changes that are to be brought so as to boost the laws relating to comparative advertising.

There is a need for a statute w. r. t comparative advertising as with the widespread use of comparative advertising came many of the typical advertising abuses, which were delightfully very vague. The most common types of abuses include: false claims, where the advertisers claim that his product does something that others product fail to do; product disparagement, where the advertiser unjustifiably attacks a competitor's product[45]; and false representation, where the advertisement is misleading. The law needs to respond to these abuses in a number of ways and mere judicial pronouncements will not be enough.

Talking about pronouncing/awarding damages, Injunction is the only remedy given by the court in the matter of product disparagement. The most important argument in its favour can be given that it eliminates the abusive advertisement from the market place.[46]

The question now arises, that will the injunction be able to undo all the loss of reputation that the product has suffered? The answer to this is that it will at the most eliminate the abusive advertisement from the market place but it would not be able to restore the beneficiary to its rightful position and can return back the reputation[47]. The most shocking fact of the Indian law on comparative advertising is that no damages have ever been awarded in the matters of Comparative Advertising. It is very difficult to prove that an advertisement or campaign was the direct cause of loss in a sales or potential sales by the competitor. In this regard it is imperative for the judges to make sure that Cases do pass the injunction stage and open a new door for damages. Such damages may come in the form of corrective advertising as well as monetary awards.

Corrective Advertising: Undoing the harm can be a one type of relief that may be granted is corrective advertising. This is an award of monetary value or we can say money specifically calculated so as to be spent on advertising that will correct any confusion caused by the abusive advertisement. This form of remedy is often resorted to in US where quite often the defendant is charged with the task of circulating the corrective advertisement.

End-Notes
[1] Northwestern University School of Law, Chicago, History of Comparative Advertising, 2012, available at http:// www.scholarlycommonslaw.northwestern.edu/cgi/viewcontent.cgi?article=1063 Last visited on March 23rd 2018.
[2] Pechman and Stewart ,The Development of A Contingency Model of Comparative Advertising (Working Paper no. 90-108,Marketing Science Institute,Cambridge,Massachusetts,2011)
[3] Sukanya and Ashok Kumar, Comparative Advertisement : Benefit to Consumers, The Hindu ,(June 15,2000), available at http://www.hinduonnet.com//thehindu/2000/06/15stories10615000h.htm (Last visited March 23,2018)
[4] EU Directive 97/55/EC.
[5] Article 19(1)- All citizens shall have the right to (a) freedom of speech and expression.
[6] Article 19(2)-Nothing in sub clause (a) of clause(1) shall affect the operation of any existing law or prevent the state from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
[7] Hamdard Dawakhana (Wakf) Lal v. Union of India, 1960 AIR 554;1960 SCR(2) 671.
[8] Hemant Goyal & Jitender Jain, Advertising Law In India Part-I, Global Jurix,Advocates and Solicitors, available at http://www.mondaq.com/india/x/192384/advertising+marketing+branding Last visited on 21st March, 2018.
[9] Section 2(z)(b) of Trademarks Act of India 1999.
[10] Passing off action is derived from common law in which Case infringement of a trademark is carried out in a manner where in the mark is not only similar but is also deceptively to mislead and confuse the end users.
[11] Garner Bryan, A Black's Law Dictionary, 7h edn (West Group, Minnesota) 1999.
[12] Meaning of 'disparagement', as given under Black's Law Dictionary, Garner Bryan A, Black's Law Dictionary, 7th edn (West Group, Minnesota) 1999.
[13] Tata Press Ltd. v. Mahanagar telephone Nigam Ltd. AIR 1995 SC 2438.
[14] Dabur India Ltd. v. Wipro Limited CS (OS) No.18 of 2006, decided on 27th March, 2006 (Delhi High Court).
[15] In Suzuki Motor Corp v Consumers Union of United States Inc, 292 F.3d 1192 (9th Cir 2002).
[16] The states with product disparagement statutes in US are: Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, South Dakota and Texas.
[17] Reckitt and Colman of India Ltd v. Kiwi T.T.K Ltd, 1996, PTC(16) 393.
[18]Priya Bansal : "Use of Trademark in Comparative Advertising : Situation in India"; Intellectual Property Law, Dated-May 4, 2006
[19] Lien Verbauwhede, Intellectual Property And Advertising, available at http://www.wipo.int /sme/en/activities/india_nift_5/advertising_lien.ppt332, 5 Internet and Digital Technologies, April 2,2009, (Last visited March 12,2014)
[20] Reckitt and Colman v. M.P. Ramachandran 1999 PTC (19) 741
[21] Pepsi Co. Inc. v. Hindustan Coca Cola Ltd., 2001 (21) P.T.C. 722
[22]Navpreet Panjrath and Kanwardeep Singh, Comparative Advertising: Things You Can Do and Things You Can't, available at http://news.indlaw.com/guest/columns/default.asp?navpreet. (Last visited on Feb 28,2018)
[23] 2007(114) ECC 24, 2007.
[24] M Balasundaram v. Jyothi Laboratories Ltd., 1995 (82) CC 830 (MRTPC).
[25] Dabur India Ltd. v. Colgate Palmolive India Ltd, 2004,PTC 401.
[26] Shakeel Kudrolli and Anoop Narayanan, "A changing IP environment http://www.buildingipvalue.com/05_AP/316_319.htm (April 14, 2009).
[27] Dabur India Ltd. v. Emami Limited, 2004 (29) P.T.C. 1.
[28] Dabur India Ltd. v. Wipro Limited, Bangalore 32, P.T.C. 677.
[29] Managing Intellectual Property, "India: How to gain from comparative advertising", The Global Magazine for Intellectual Property Owners, http://www.managingip.com/Article.aspx?ArticleID=1321496
[30] Touch IP, "Comparative Advertising: Britannia gets the better of Unibic in Court: Not having such a "Great Day" after all!", Blog Spot (February 20, 2008). http://selvamandselvam.blogspot.com/2008/02/comparative-advertising-britannia-gets_9103.html
[31] Money Control, "Britannia Good Day wins injunction in its favour", CNBC-TV18 Matrix, Dec 18, 2007 http://www.moneycontrol.com/india/news/news/britannia-good-day-wins-injunctionits-favour/12/07/317817
[32] Functions of the FTC available at: http://www.ftc.gov/ftc/history/ftchistory.shtm(last visited on March,03,2018).
[33] 15 U.S.C. §§ 1051-1127 (1996).
[34] Section 32(1)(a) of the Lanham Act protects federally registered trademarks from subsequent unauthorized uses that are likely to cause confusion or deceive consumers.
[35] 221 F. Supp. 2d 410 (2002).
[36] Barclays Bank Plc . v. RBS Advanta ,1996 RPC 307, Chancery Division.
[37] British Airways Plc v. Ryanair Limited, 2001 FSR 32 .
[38] O2 Holdings Ltd. & Ors v. Hutchison 3G Ltd (2006) E.W.H.C. 534 (Ch). 12.
[39] [2007] EWCA Civ 968.
[40] ECLI:EU:C:2008:655.
[41] ECLI:EU:C:1997:517.
[42] [2000] All ER (D) 2099.
[43] [1999] All ER (D) 478.
[44] Akhileshwar Pathak, Liberalization and law on comparative advertising in India, http://www.iimahd.ernet.in/~ impandey/jan_mar_2005/67-75.pdf, (last visited on March 20,2018).
[45] Charrles E Clarke , The future of common law, Yale Law Journal, 47 (2)(1937) 309-310.
[46] Trademark Reporter, 75 (1995) 227, 228.Pompeo Paul E, To tell the truth: Comparative advertising and Lanham Section 43(a), Catholic University Law Review, 36 (1987) 565-583.
[47] Ames Publishing Co v. Walker-Davis Publication Inc, 372 FSupp 1, 16 (ED Pa 1974).793 F 2d 1034, 1037 (9th Cir 1986).