THE DIWAN

Diwan Advocates The Diwan Scoop April, 2023

SCOOP
Issue 25

An Official Monthly Newsletter issued by Diwan Advocates

COMPARATIVE ADVERTISING IN INDIA: The law relating to comparative advertising in

Dr. Farrukh Khan and Somya Mishra relation to trademarks, in India, is based upon the

Since independence the Indian businessmen and decision laid down in the case of Irving's Yeast Vite

industries faced limited competition – both from Ltd v FA Horse-nail2. Section 29(8) of The

within and outside the country but, in 1990’s India, Trademarks Act, 1999 enunciates situations, when

in pursuit of globalization, resolved to open up its the use of a trademark in advertising can constitute

economy, removing controls and various barriers. 1 infringement. It says that any advertising which is

after the liberalization. But after the process of not in accordance with honest practices; or is

liberalization and globalization of the Indian detrimental to the distinctive character, or to the

economy, the orb of trade, industry and commerce repute of the mark, shall be an act constituting

has been greater than before to an extent that all the infringement. At the same time Section 30 (1) makes

geographical barriers to trade have been removed as comparative advertising an exception, to acts

a result of which various foreign multinational constituting infringement under Section 29. It

companies are coming to start their business which provides that any advertising which is in accordance

has given rise to Competition among the various with honest practices, and does not cause detriment

products and services has become vicious and this to the distinctive character or to the repute of the

fanatical competition has caused massive challenges trademark will be permissible and will not constitute

as well as threats to India. infringement. The legal scenario concerning

comparative advertising has seen a shift from
curbing monopolies to the extent of encouragement

1
of competition. The basic legal structure has been
Gabriel Ng , Comparative Advertising , Outlier -Standardly
Deviant, 4th June 2008, available at laid down by the Monopolies of Restrictive Trade
http://outlie.blogspot.in/2008/06/my-brand-is-better-than-your-
2
brand.html Irving's Yeast Vite Ltd v FA Horse-nail. (1934) 51 RPC 110

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Diwan Advocates The Diwan Scoop April, 2023

Practices Act, 1984 (M.R.T.P Act) and the Trade can apply in these forums of justice as a result of
Marks Act, 1999 (T.M.A.) repealing the act firms cannot apply for relief under
The main reason behind the enactment of the MRTP this act. Thus under the existing law, a manufacturer
Act, 1969 was to prevent monopolies and restrictive whose goods are disparaged has no locus standi to
trade practices in the business. The MRTP Act was seek a remedy. Even of a firm succeeded in getting
amended in 1984 in which a separate chapter was an advertisement stopped through this route, it
added and also a body was constituted under the would not get any compensation for loss of
name of Director General of Investigation and profit.3The Commission elaborated the meaning of
Registration (DGIR). DGIR has the function of the provision while deciding the decision of one of
investigating into the complaints made in reference the cases. It said that:
to the restrictive or unfair trade practices. The In order to bring home a charge under clause (x) of
procedure followed by DGIR is that it takes the case Section 36A (1) it must be established that the
and presents it before the commission’s bench. And disparagement is of the goods, services or trade of
the commission on feeling it to be offensive can give another ... the words ‘goods of another person’ have
the order of ceasing the activity. Section 36 A of a definite connotation. It implies disparagement of
MRTP Act listed several actions to be ‗unfair trade the product of an identifiable manufacturer. 4
The
practices‘Section 36 A (1) (X) of MRTP act reads as Commission along with the above mentioned also
follows: said that ‘a mere claim to superiority in the quality
“..Unfair trade practice‖ means a trade practice of one’s product’5 is not sufficient enough to sustain
which, for the purpose of promoting the sale, use or the claim under clause (x)
supply of any product, adopts any unfair or Comparative advertising has emerged as a very big
deceptive practice including in any of the following and emerging issue in the area of law and some of
practices, namely …the practice of making any the really interesting issues regarding it can be
statement, whether orally or in writing or by visible understood through the means of cases decide by
representation, which gives false or misleading facts MRTPC and Supreme Court.
disparaging the products or trade of another
3
person” Rajiv Kaushik,Comparative Advertising And Its Status In
India, IJCEM International Journal Of Computational
But the biggest drawback of the whole scenario is Engineering & Management, Vol. 15 Issue 3, May 2012
4
that since the MRTP act has been repealed in place M Balasundaram Vs Jyothi Laboratories Ltd., Judgement Of
The MRTP Commission, 10/10/1994. Citation: 1995
of it the above mentioned are of law is covered by (82) CC 830.
Consumer Protection Act. Now since only consumer 5
ibid

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Diwan Advocates The Diwan Scoop April, 2023

Some of the leading cases regarding this are like the perspective to the existing area of law and said that
case of Reckitt & Colman of India Ltd. v Kiwi for determining disparagement the degree is to be
TTK136 in this case the facts of the case were like looked into. The court stated that in comparative
both parties were in the business of manufacturing advertising, the degree of disparagement should be
shoe polish. The defendants name of the brand such that it would be tantamount to, or almost
which they were marketing was ‘Kiwi’ and in an tantamount to defamation.
advertisement comparing a bottle of their shoe
polish with another bottle, marked as ‘Product X’ Mauro Cappelletti’s three waves of access to justice
whereby the virtues of the defendant’s product were Mauro Cappelletti (1927-2004) was one of the
extolled while disparaging the other unnamed giants of 20th Century comparative law. His work in
product; the plaintiff claimed that ‘Product X’ bore a comparative civil procedure, comparative
striking resemblance in design to their own product constitutional law, Access to Justice, the sociology
namely, ‘Cherry Blossom’ and that the of law and European integration have left an
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advertisement disparaged its product. The Delhi indelible mark on their respective fields.10 While
High Court held that statements made by working on the Florence Access-to-Justice Project,
manufacturers claiming their product to be the best Cappelletti authored a four volume book namely
or puffing up their goods will not give a cause of Access to Justice. Cappelletti uses a "wave"
action for disparagement but however, any metaphor to describe the access to justice
statements that portrays competitors’ similar goods movement, especially its experience in the United
in bad light while simultaneously promoting the States.11
manufacturers own goods is not permitted and will During the project, a discussion took place in order
be tantamount to disparagement.8 In this particular to understand the meaning of Access to Justice and
case Delhi high court granted an injunction against the subjects affected by the issue. It was observed as
defendants. follows:
9
In Dabur India Ltd. v. Wipro Limited, Bangalore “If access to justice
the judiciary finally said and added a new means in part this political,
redistributive trend, which of
6
1996 P.T.C. 193 T 399
10
7
Swaraj Paul Barooah ,Comparative Advertisements: https://www.law.nyu.edu/global/globalvisitorsprogram/global
Balancing Consumer Interest Vis-À-Vis Ipr Infringement researchfellows/maurocappellettiglobalfellowincomparativela
8 w
Reckitt & Colman of India Ltd. v. Kiwi T.T.K., 1996 P.T.C. 11
193 T 399 https://repository.law.umich.edu/cgi/viewcontent.cgi?article=4
9
2006 (32) P.T.C. 677. 704&context=mlr

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Diwan Advocates The Diwan Scoop April, 2023

course derives from complex wave dealt majorly with community paralegals and
social and economic forces, alternative dispute resolution and referred to these as
then we must ask the further the less formal alternatives to courts and the
question of whether a focus traditional institutions of justice delivery system.
merely on the law and legal
institutions pays too little Injunction against Breach of Joint Compromise
attention to the political In the month of Februrary, 2014, the Chandigarh
power and influence of the High Court had given its decision in a situation quite
groups whom changes in the similar to the above in the case of M/S Aarlia
legal system were supposed Builders And Ors. V. M/S Sukhda Promoters Private
to benefit.” Ltd. the facts of the case were similar to the given
The First Wave: Legal Aid for the Poor. This wave situation where the defendant had tried to alter the
involved the reform of institutions for delivering terms of a joint agreement regarding a land dispute.
legal services to the poor. Activism is the primary Consequently, the plaintiff company demanded for a
recognition given to this wave wherein there was partition and a permanent as well as interim
massive outrage of institutionalizing the legal injunction according to Order 39, Rules 1 and 2 of
assistance that is required to be given to public. CPC r/w Section 151 of CPC. After various denials
The Second Wave: Representation for Diffuse of such an injunction by the Trial Court and the
Interests. This wave tied a knot to the first wave and Appellate Court addressing the injunction as
continued with indeed a better force. This wave impugned order where the main grounds remain that
basically dealt with the strengthening of Public the act of alteration done by the defendants
Interest Litigation. This was meant to protect the (clubbing of the khewats) was legal in nature and
interests of a class of people seeking justice through not supposed to be contested. However, the Punjab-
representation. Although representation is typically Haryana High Court at Chandigarh affirmed to the
visualized as culminating in judgment and trial, it injunction demanded by the plaintiff.
more frequently proceeds by informal negotiation The above-cited recent case also turned out to be
and/or a truncated invocation of the formal legal over-ruling the prior existing principle relating to
process companies which stated as follows:
The Third Wave: From Access to Legal “It is an elementary principle of the law
Representation to a Broader Conception of Access relating to joint stock companies that the court will
to Justice: The "Access-to-Justice Approach". This not interfere with the internal management of

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Diwan Advocates The Diwan Scoop April, 2023

companies acting within their powers, and in fact "The High Court should be extremely cautious and
has no jurisdiction to do so…” slow to interfere with the investigation and/or
However, in Nagappa v. Madras Race Club , the prosecution except when it is convinced beyond any
same issue of joint petition regarding company law manner of doubt that FIR does not disclose
had come up where the Madras High Court had commission of any offence or that the allegations
pointed out that a shareholder has a right to bring an contained in FIR do not constitute any cognizable
action to the Court - offence or that the prosecution is barred by law or
(i) In respect of matters which are ultra vires the the High Court is convinced that it is necessary to
company; interfere to prevent abuse of the process of the
(ii) Where the action of the majority if illegal; Court. In dealing with such cases, the High Court
(iii) Where a special resolution is required by the has to bear in mind that the judicial intervention at
articles of the company to do a particular thing and the threshold of the legal process initiated against a
It is done either without such resolution or the assent person accused of committing offence is highly
of the majority to such resolution is obtained by a detrimental to the larger public and societal
trick; and interest.”
(iv) Where the act complained of constitutes a fraud The people and the society have a legitimate
on the minority. expectation that those committing offences either
even in a case of Smt. Nai Bahu v. Lala Ramnarayan against an individual or the society are expeditiously
& Ors , it was ruled out by the Apex Court that it is brought to trial and, if found guilty, adequately
the dominant intention of the document ( the joint punished. Therefore, while deciding a petition filed
compromise petition) which must guide the for quashing FIR or complaint or restraining the
construction of the contents. Thus, it was made clear competent authority from investigating the
in the case that if any of the parties commits breach allegations contained in FIR or complaint or for
of the terms of compromise, he/she will have to pay stalling the trial of the case, the High Court should
the necessary damages. be extremely careful and circumspect.
Referring to the case of M.C. Abraham and Anr. v.
Judicial Intervention in Police Investigation State of Maharashtra , The Punjab-Haryana High
In the recent case named Grasim Industries Ltd. vs Court in the case of Mandeep Singh v. State of
Competition Commission Of India (2013) , the Haryana and Ors. , laid down that A person whose
Delhi High Court had held as follows: petition for grant of anticipatory bail has been
rejected may or may not be arrested by the

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Diwan Advocates The Diwan Scoop April, 2023

investigating officer depending upon the facts and According to Section 33A of the Representation of
circumstances of the case, nature of the offence, the People’s Act 1951, the candidate is endowed with
background of the accused, the facts disclosed in the the duty to reveal certain information and such
course of investigation and other relevant information can be made accessible for the public
considerations. With reference to the same M.C. due to their right to information. Under this section,
Abraham case, the 203rd Law Commission Report the candidate is required to provide information
on Anticipatory Bail also depicted clearly that the regarding conviction or accusation of any offence
mere fact that an anticipatory bail application is punishable with imprisonment for two years or more
rejected is no ground for directing the applicant’s in a pending case. Along with this, the candidate is
immediate arrest. also required to disclose detailed information with
In State of Haryana and Ors. v. Bhajan Lal and Ors respect to assets, liabilities and educational
., it was held as follows: qualifications.
“A noticeable feature of the scheme under Chapter This information is to be recorded in the form of an
XIV of the Code is that a Magistrate is kept in the affidavit, sworn before a Magistrate and must be
picture at all stages of the police investigation but he attached with the nomination paper when delivered
is not authorized to interfere with the actual to the Returning Officer. Under Form 26, no column
investigation or to direct the police how that should be left unmarked or blank. If the information
investigation is to be conducted. But if a police isn’t provided then it can be substituted for Nil or
officer transgresses the circumscribed limits. And Not Applicable. RO must check whether all the
improperly and illegally exercises his investigatory necessary information has been furnished or not. If
powers in breach of any statutory provision causing any candidate fails to disclose the information in the
serious prejudice to the personal liberty and also blanks even after reminder, the nomination paper is
property of a citizen, then the court on being liable to be rejected by the RO at the time of the
approached by the person aggrieved for the redress scrutiny of the nomination papers.
of any grievance; has to consider the nature and The Part A or B of the revised Form 26 relates to
extent of the breach and pass appropriate orders as' criminal antecedent and the information must be
may be called for without leaving the citizens to the furnished by the candidate, failure of which will lead
mercy of police echelons since human dignity is a to rejection of the nomination.
dear value of our Constitution.” In addition to the above, Section 125A mentions
that, wherein any candidate renders false affidavit or
Fate of Electoral Nomination in absence of Affidavit furnishes false information believing it to be false or

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Diwan Advocates The Diwan Scoop April, 2023

conceals any information in the nomination paper

under right to information (Section 33) shall be
punishable for a term of not more than six months or
fine or both. Section 75A also makes it pertinent on
the candidate to disclose under oath information
regarding assets and liabilities also and regarding
beneficiaries and necessary information. Therefore,
the nomination paper is bound to be rejected in such
case.

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Diwan Advocates The Diwan Scoop April, 2023

MONTHLY UPDATES:
Locate Us:
• The Union Cabinet recently approved the
Cinematograph (Amendment) Bill 2023. The
Head Office: proposed legislation seeks to curb the transmission
B-2, Defence Colony, New Delhi-110024 of pirated film content on the internet.
E-Mail – [email protected] • The National Commission for Protection of Child
Ph.: (+91) 11 41046363, 11 49506463, 11 41046362 Rights (NCPCR) has issued guidelines for the first
time for conducting a preliminary assessment to
determine whether a child should be treated as a
Chandigarh: minor or not in criminal cases which come under
00679, Block-3, Shivalik Vihar II, Nayagaon, the “heinous” offences category of the Juvenile
Near Government Model Sr. Sec. School, Justice (Care and Protection of Children) Act,
Khuda Ali Sher, Chandigarh (PB)- 160103 2015.
Ph.: (+91) 1722785007 • On March 29, 2023, the Indian government
introduced the Coastal Aquaculture Authority
(Amendment) Bill, 2023, to amend the provisions
Noida: of the Coastal Aquaculture Authority Act, 2005.
428, Street No.9, District Courts, Gautam Buddha The primary purpose of this bill is to promote
Nagar, Surajpur, Greater Noida, (UP) sustainable coastal aquaculture in India while
ensuring ease of doing business.
Ph.: (+91) 8010656060
Bookmark this case!
Allahabad (Prayagraj):
Madhyamam Broadcasting Limited vs
A-105/106, Sterling Apartment,
Union of India & Ors, Civil Appeal No.
93 Muir Road, Near Sadar Bazar Crossing,
8129 of 2022:
Ashok Nagar, Allahabad-211001
Ph.: (+91) 8010656060 While principles of natural justice are
fundamental to ensuring fairness in legal
Meerut: proceedings, they can be excluded in cases
L3, 307, Sector 13, where national security concerns outweigh
Shastri Nagar, Meerut (UP) the duty of fairness. The test to assess the
Ph.: (+91) 8010656060 validity of the claim of involvement of
national security considerations is whether
there is material to conclude that the non-
disclosure of information is in the interest of
national security, and whether a reasonable
prudent person would draw the same
inference from the material on record.