Trademark creates a exclusive zone for the owner which other marks may not enter. The extent of zone may vary according to the circumstances. An identical or mark which is extremely similar to existing trademark must be kept in distance in respect to goods and services in which the mark is registered.

According to section 29(1) of Trademark Act 1999 trademark is infringed when a person not being a registered proprietor or person who is permitted by the owner to use the trademark uses such mark to create deception in the mind of the consumer in course of business to take the advantage of the registered trademark results into infringement of trademark.

When the goods are registered with trademark it becomes fundamental right in goods, In order to constitute infringement the defendant must infringe the trade in the comparative advertising.

Section 30 (1) of the Trade Mark Act 1999 in effect permits comparative advertisement, stating that Nothing under the section 29 shall be preventive the use of Trade Mark by any person with the purpose of identifying good or services as those of those proprietor the use:
(a) is in accordance with the honest practice in industry
(b) is not such as to take unfair advantage of or be detrimental to the distinctive character or repute of the trade mark.

 Section 28(8) of this act discussing what form of advertisement is amount to infringement. If such advertising: (a) take unfair advantage and is contrary to honest practise in industrial or commercial matters; (b) is detrimental to its distinctive character; (c) is against the reputation of the trademark.

Continue reading:
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
Part-6: WHY USE COMPARATIVE ADVERTISEMENT
Part-7: Position across world on Comparative Advertisement


[1] 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)

 

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Kajal Dubey

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