Understanding Comparative Advertising in Trademark Law: Puffery. Disparagement or Infringement?

In today’s world, advertising is a key way to attract consumers and build awareness about a brand. When a brand is promoted by comparing it with competitors to show its superiority, it is known as comparative advertising. This can be divided into two aspects: puffery and disparagement. Puffery involves exaggerated but non-misleading claims, while disparagement unfairly criticizes a competitor’s brand or product. Comparative advertising stands out as it effectively captures consumer attention. Such ads tend to stay longer in consumers’ minds due to the creativity involved.

In this blog, we will analyze when comparative advertising is legal and valid, and when it crosses the line into disparagement or trademark infringement. The question of legality versus disparagement has come before the courts several times. While there is now some clarity on where to draw the line, new cases continue to emerge and are being decided by the courts.

Recently, the Delhi High Court directed RSPL Limited to amend portions of its advertisement, as they were found to be derogatory and defamatory. The defendant was targeting the plaintiff’s product by using similar packaging, along with negative and disparaging remarks.[1] Further, early this month, the Delhi High Court ordered the deletion of specific lines from the defendant’s commercial, including, “Why settle for ordinary Chyawanprash made with 40 herbs?” which clearly indicated the plaintiff’s Dabur Chyawanprash as it is advertised as containing 40+ herbs.[2]

While the Constitution of India guarantees freedom of speech and expression, advertisements cannot claim blanket immunity solely for raising awareness. It is essential that they do not mislead consumers or disparage competitors’ goods. The Supreme Court in Hamdard Dawakhana v. Union of India[3] clarified that advertisements, though a form of speech, are not entitled to full protection under Article 19(1)(a) due to their commercial nature. The court made an important distinction between political or social speech and commercial advertising, and upheld the government’s authority to regulate misleading advertisements in order to protect public health and welfare.

Under Section 29(8) of the Trade Marks Act, 1999, the use of a registered trademark in advertising constitutes infringement if such use is dishonest, harms a trademark’s distinctiveness, or damages its reputation constitutes infringement. However, Section 30(1) of the Act provides exceptions to infringement where the use is in accordance with honest commercial practices and does not take unfair advantage of, or cause detriment to, the distinctive character or repute of the trademark.

Courts have consistently drawn a line between permissible comparative advertising and unlawful disparagement. For example, in Reckitt & Colman of India Ltd. v. Kiwi TTK Ltd.[4], the Delhi High Court held that while a trader is allowed to boast its products’ superiority, such statements must not denigrate a competitor. In Pepsi Co. Inc. & Ors. v Hindustan Coca Cola Ltd.[5], the court laid down that in order to examine the question of disparagement, these three factors should be considered: (a) the intent of the commercial; (b) the manner of the commercial; and (c) the storyline of the commercial, and the message that it seeks to convey to the customers. Applying this, the ad suggesting Pepsi was a “children’s drink” was found to be derogatory. The same principles were followed in Britannia v. Unibic Biscuits India[6], where an injunction was granted against a tagline “Why have a Good Day, When you can have a Great Day!” indirectly mocking Britannia’s “Good Day” cookies.

However, it is well established that promotion or exaggeration of one’s own products, commonly referred to as “puffery”, is not considered objectionable, provided the statements are either true or, at most, harmless exaggerations. Such puffery, including obvious overstatements intended to attract attention, is generally permissible as long as it is not likely to be taken literally or mislead consumers. However, when a claim refers to specific qualities or asserts clear superiority, and such claims are false or deceptive, they may be legally actionable. This is because the falsehood crosses the line from acceptable puffery into misleading representation. Determining when puffery becomes disparagement is a nuanced issue. A useful standard is the “reasonable person test”, which is, whether an average person would interpret the claim as a serious and factual assertion. Alternatively, one may consider whether the advertiser has made a specific claim about a flaw or shortcoming in a competitor’s product. In Reckitt Benckiser (India) Pvt. Limited v. Wipro Enterprises (P) Limited [7], the Delhi High Court clarified that puffery is not actionable unless the overall effect of the ad is to disparage the competitor’s product rather than promote one’s own.

Courts have ruled on exceptions where a competitor’s product is shown as inferior, provided the claim is backed by factual, substantiated research. In one case, an ad comparing products based on lumens (a standard measure of brightness) was not considered disparaging, as the comparison was accurate and verifiable.[8] However, even if advertiser claims are factual, if the overall message is misleading, the advertisement may still amount to disparagement.

The current legal framework governing comparative advertising under the trademark law remains somewhat undefined. However, based on the provisions of the Trade Marks Act, 1999 and the case law discussed above, it is clear that fair use is limited to honest comparison and must not involve defamation, denigration, or unfair portrayal of a competitor’s product. Advertisers are free to promote their own brand through puffery, provided they do not cross the line into disparagement. To assess whether an advertisement amounts to puffery, disparagement, or trademark infringement, factors such as intent, overall impact, storyline, and presentation must be considered. If a competitor’s product is depicted as inferior, even indirectly, the advertisement may be deemed disparaging and therefore impermissible. Ultimately, the purpose of comparative advertising should be to inform and benefit consumers and not to undermine competitors through unethical means.

[1] Hindustan Unilever Limited v. RSPL Limited, CS(COMM) 629/2025.

[2] Dabur India Limited vs Patanjali Ayurved Limited And Anr, CS(COMM) 1195/2024

[3] 1960 AIR 554.

[4] 63(1996)DLT29.

[5] 2003 (27) PTC 305 (Del).

[6] MIPR 2008 (3) 347.

[7] CS(COMM) 258/2023.

[8] Havells India Ltd & Anr. v. Amritanshu Khaitan & Ors., CS(OS) 107/2015.