Enactment of trademarks Act, 1999 and Trademark Rules 2002, with effect from 15th September 2003, guaranteed protection to the national and international player’s protection of their trademark and also came into conformity with the trips agreement.
The new doors were opened for regulating the unfair trade practice in comparative advertising and trademark infringement in India. Trademarks act is an attempt to secure the interest of the trademark owner as well the interest of the consumer in informative advertising.
According to the act a registered mark is considered to be infringed by a person if such person exploits such registered trademark in relation to his business or tradename or part of his trade name.
Section 29(8) of trademark Act outlines the situation in which infringement occurs if trademark of another trader is used in the advertisement whereas an escape route is provided in section 30 (1).
According to Section 29(8)
- Actions contrary to honest industrial practices in commercial and industrial matters.
- Detrimental to distinctive character of trademark.
- Reputation of the trader is harmed
Exception to this section is provided in section 30(1), where it is explained that how comparative advertising can be in accordance with honest business practices and In industrial and commercial market and is not detrimental to the trademark of another trader would not amount to infringement.
Therefore from the following provisions it can be settled that trademark law tries to address the interest of the trademark owner as well as the competitive freedom.
Comparative advertising and relative provisions in The Advertising Standard Council of India
In order to protect the rights of the consumers in commercial communication Indian advertising council was established council tries to scrutinize the act of advertisement by adoption of self-regulating code. The code is divided in four chapters where in the fourth chapter it is stated the comparative advertising is allowed seeing the vigorous competition but is subject to certain exception.
Part-1: Background of Comparative Advertising in light of Indian trademark and patent Laws
Part-2: Introduction Comparative Advertising in legal framework.
Part-3: Comparative advertising and its connotation in Constitution
Part-4: Legal provisions regarding trademark in India with reference to Comparative advertising
Know Indian Trademarks Act, 1999
Part-5: Comparative Advertising and Infringement of Trademark
1 Simon P. Anderson and Régis Renault, Comparative Advertising, October 2006
2 Rajiv Kaushik, Comparative Advertising and its Status in India, IJCEM International Journal of Computational Engineering & Management, Vol. 15 Issue 3, May 2012. (http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.450.7739&rep=rep1&type=pdf)