Disparagement –

Challenges for 21st

Century.
Agenda

I DISPARAGEMENT & RELATED CONCEPTS

II THE BOUNDARY

III INDIAN LAWS & STATUTES

IV REGULATORY AGENCIES

V THE US LAW

VI COVID – 19 RELATED CASES

Disparagement & Related
Concepts
DEFEMATION the action of damaging the good reputation of someone; slander or libel.
Could involve criminal liabilities

DISPARAGEMENT the act of suggesting that somebody/something is not important or

valuable.

PUFFERY exaggerated or false praise. It is a legal way of promoting a product

through oversized statements. e.g. India's Best Institute

FALSE False advertising occurs when factually false statements are used to
promote a product. For example, stating that a car gets 35 Kilometer per
ADVERTISEMENT liter when it actually only gets 20 Kilometer per liter is false advertising.
THE BOUNDARY

 A tradesman is entitled to declare his goods to be best in the world, even though
the declaration is untrue.
 He can also say that his goods are better than his competitors (without naming the
competitor), even though such statement 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 that his goods are better than his competitors',
say that his competitors' goods are bad. If he says so, he really slanders the goods
of his competitors. In other words, he defames his competitors and their goods,
which is not permissible.
Indian Laws & Statutes

TORT
Commercial disparagement is a civil wrong, it carries tortious liability.

CONSTITUTION OF
INDIA Article 19 (1) (a) provides that all citizens shall have the right to freedom of speech and
expression along with certain limitations under Article 19 (2).

S. 29 (8): TRADEMARKS if a comparative advertisement takes unfair advantage and is contrary to honest practices in
ACT, 1999 industrial or commercial matters, is detrimental to its distinctive character or is against the
reputation of trademark, it amounts to infringement of trademark.
states about the conditions when comparative advertisements do not infringe the
S. 30 (1) TRADEMARKS trademarks. A trader is allowed to use it in accordance with the honest practices in industrial
ACT, 1999 or commercial matters, and is not such as to take unfair advantage of or to be detrimental to
the distinctive character or repute of the trade
Indian Laws & Statutes
the power to enquire into the complaints of unfair trade practices is vested
CONSUMER with the consumer forums established under the Consumer Protection Act,
PROTECTION ACT, 1986 1986

Chapter IV of „The It provides that advertisements containing comparisons with other

Code of Self Regulation manufacturers or suppliers or with other products including those where a
in Advertising‟ competitor is named, are permissible, subject to guidelines provided under
the rules.

Food Safety and

Standards (Advertising the advertisements should not undermine the importance of healthy
and Claims) lifestyles, and also shall not promote or portray their food and beverages
Regulations, 2018 as a meal replacement unless otherwise specifically permitted by FSSAI
REGULATORY AGENCIES
NATIONAL &
ADVERTISING STATE
STANDARD COMMISSION
COUNCIL OF S OF SUPREME COURT
INDIA (ASCI) CONSUMER OF INDIA
FORUM

HIGH COURTS
FOOD SAFETY
COMPETITION AND
COMMISSION STANDARDS DISTRICT COURTS
OF INDIA AUTHORITY
OF INDIA
THE US LAW
• Disparagement, in United States trademark law, was a statutory cause of action
that permits a party to petition the Trademark Trial and Appeal Board (TTAB) of
the Patent and Trademark Office (PTO) to cancel a trademark registration that may
disparage or falsely suggest a connection with persons, living or dead, institutions,
beliefs, or national symbols, or bring them into contempt or disrepute.

• Examples of trademarks that were refused or cancelled for disparagement include

a depiction of Buddha for beachwear, use of the name of a Muslim group that
forbids smoking as a cigarette brand name, and an image consisting of a large
hammer and sickle national symbol of the Soviet Union.

• However this provision was struct down by Supreme Court in 2017, as

unconstitutional in  Matal v Tam on the ground it goes against spirit of first
amendment - the Freedom of Speech
COVID – 19 RELATED
CASES
HUL v/s Reckitt Times v/s The Print
Benskiser
Hindustan Unilever Times Group slaps legal
(HUL) took Reckitt notice on ThePrint, for
Benckiser (RB) to the ‘disparaging’ article on
Bombay High Court COVID-19 transmission.
over RB’s most recent It had published the
Dettol handwash following article.
advertisement, alleging Transmission of
that it disparages HUL’s coronavirus through
Lifebuoy soap newspapers, currency
trademark. HUL is possible but unlikely:
claiming that Dettol has Experts
made a false claim that
bar soaps aren’t
effective..
QUIZ
McDonald carried full page advertisements in newspapers seeking to get traffic at its
outlets by stating, "Stuck with Ghiya-Tori (bottle gourd-sponge gourd) Again? Make
the 1+1 Combo you love". FSSAI has issued a show cause notice seeking response why
action should not be initiated against McDonald for their irresponsible advertising

Advertisement amounts to disparagement, because

1. It demeans homemade healthy meal

2. It makes false claims about its taste
3. It makes misleading remarks compared to its competitor brands
4. No, it advertisement does not amount to disparagement of any particular product
or business.