The history of comparative advertising dates back to the beginning of commerce itself. It has always been normal for a trader to attempt to enjoy pecuniary benefits by drawing a comparison between the qualities of his products/services and a competitor’s.
While comparative advertising was initially restricted to ‘puffery’—where a trader list facts about the product, or makes vague claims which cannot be proved or disproved—some traders, in the name of comparative advertising, have started ‘disparaging’ competitors’ goods, forcing the law to intervene. Puffery and disparagement can therefore be considered as the two fundamental facets of comparative advertising.
In India, the law on comparative advertising has developed through judicial precedent. During the late 1990s, courts took the view that while ‘puffing’ is permissible, any statement or image which demeans or disparages a competitor’s product is not. This view was consistently upheld by courts in many cases.
In all these cases the guiding principle for the courts has been that “The law is that any trader is entitled to puff his own goods even though such puff as a matter of pure logic involves the denigration of his rival’s goods. Notices reading ‘the best tailor in the world’, ‘the best tailor in this town’ and the ‘best tailor in this street’ do not commit an actionable offence. When, however, the trader is not puffing his own goods but turns to denigrate the goods of his rival then the situation is not so clear-cut.
Advertising, Colgate, comparative advertising