COMPARATIVE ADVERTISING AND ETHICAL BOUNDARIES

This article is written by Abinas Kaur Gill of Lovely Professional University, an intern under Legal Vidhiya.

ABSTRACT

Comparative advertising, although acknowledged as a legitimate form of advertising globally, strolls a tightrope between healthy market competition as well as unethical disparagement. Businesses can highlight the advantages of their goods and services by comparing them to those of their competitors. Such comparisons, however, not only bias consumer decision but also encourage legal action when they are deceptive, unsupported, or demeaning. This article examines the moral and legal implications of comparative advertising, a marketing tactic that lets advertisers evaluate their goods against those of rival companies. Comparative advertising is permitted in India with specific limitations, but it cannot unfairly criticize competitors or mislead consumers. This article explains the distinction between legitimate competition and unethical business practices by a thorough examination of legislative laws, court rulings, and advertising rules.

Keywords

Comparative Advertising, Disparagement, Trademark Law, Ethical Advertising, Consumer Protection, Misleading Advertisement, Healthy Market Competition, Digital Advertising, ASCI, Trade Marks Act of 1999.

INTRODUCTION

Comparative advertising is a type of commercial advertising in which the superiority of one product or service is demonstrated by comparing it, either directly or indirectly, with another competing product. By enabling customers to make well-informed decisions based on performance, price, or quality, this marketing strategy contributes significantly to raising consumer awareness and promoting healthy market competition. Theoretically, it encourages innovation and transparency by pressuring companies to improve their products.

Comparative advertising, however, can be used as a tool for defamation, deception, and unfair business practices if it is not carried out within the bounds of law and ethics. In certain situations, it might mislead the customer or harm the standing and goodwill of rival companies rather than helping them. Therefore, in order to preserve a fair marketplace, comparable advertising must be legally regulated. In India, laws and self-regulatory organizations work together to regulate comparable advertising. Comparative advertising is allowed under the Trade Marks Act of 1999, particularly when using a competitor’s trademark in a fair and honest manner. Advertisements that are misleading or deceptive are prohibited by the Consumer Protection Act of 2019. In order to guarantee responsible advertising, the Advertising Standards Council of India (ASCI) also offers ethical principles. To stay out of trouble and keep their reputation, advertisers must thereby negotiate a challenging legal and moral environment.

LEGAL FRAMEWORK OF COMPARATIVE ADVERTISING

The marketing strategy known as “comparative advertising” involves a company promoting its products or services by either directly or indirectly contrasting them with those of one or more rivals. The goal is typically to draw attention to the advertiser’s product’s better features, better value, or superior traits when compared to a competitor’s. Although consumers might gain from these comparisons by encouraging openness and well-informed decision-making, disagreements may arise if the comparison deviates into false representations, deceptive statements, or denigration of the rival brand.

India doesn’t have a specific, independent statute named “Comparative Advertising Law.” Instead, a variety of laws and regulatory codes make up the legal framework that governs comparative advertising. The Trade Marks Act of 1999, specifically Section 30(1), offers the main statutory protection. This clause allows the use of another person’s trademark in advertising, but only if it complies with ethical business standards and doesn’t unfairly exploit the trademark owner or damage their reputation.[1] This provision makes sure that marketers can’t take advantage of another brand’s goodwill by using it as a contrast. The clause exemplifies the fine line that must be drawn between allowing for fair competition and protecting the distinctiveness and reputation of registered trademarks. This principle has been regularly maintained by Indian courts. The Delhi High Court held in Reckitt & Colman of India Ltd. v. Kiwi TTK Ltd.[2] that although self-praise and puffery are acceptable, slandering a competitor’s product directly or indirectly goes beyond the bounds of defamation and is not acceptable.

Furthermore, “unfair trade practices,” which include deceptive marketing tactics, false statements, and misleading advertisements, are defined and prohibited by Section 2(47) of the Consumer Protection Act, 2019.[3] Comparative ads may violate this rule and be illegal if they misrepresent the truth, exaggerate differences, or make unsubstantiated claims. This provision gives regulatory bodies the authority to take action against commercials that deceive consumers or undermine the public interest. This clause allows for the challenge of comparative advertisements that deceive consumers by making unsubstantiated claims or offering skewed comparisons. The 2019 Act created the Central Consumer Protection Authority (CCPA), which has the authority to launch investigations, enforce sanctions, and order the removal of certain kinds of advertisements.[4]

In addition to legal protections, the self-regulatory Advertising Standards Council of India (ASCI) establishes moral guidelines through the ASCI Code for Self-Regulation of Advertising Content. Advertisers are expressly forbidden by the ASCI Code from employing deceptive visual or verbal cues, unfairly disparaging rivals, and asserting unsupported superiority.[5]  Comparative ads must be honest, verifiable, and fairly portrayed without betraying the confidence of customers or misrepresenting the rival’s offering.

JUDICIAL PERSPECTIVE ON COMPARATIVE ADVERTISING IN INDIA

The Indian judiciary has been essential in establishing the legal parameters of comparative advertising, particularly in striking a balance between the duty to avoid unfair competition and disparagement and the right to commercial free speech. Courts have consistently held that while advertisers are permitted to highlight the superiority of their products, such freedom is not absolute and must not cross the boundary into false claims, misrepresentation, or defamation of rival brands.[6]

Reckitt & Colman of India Ltd. v. Kiwi T.T.K. Ltd. is an important landmark in the subject matter, where the Delhi High Court established fundamental guidelines for competitive advertising. “A manufacturer can say that his goods are better than those of a rival,” the Court noted, but he cannot say that the competitor’s goods are subpar because it would be slandering the goods.[7] The court reaffirmed that comparison claims must be truthful and not deceptive, emphasizing the difference between legal puffery and illegal disparagement.

Similarly, the Delhi High Court reaffirmed that comparable advertising is protected as commercial speech under Article 19(1)(a) of the Constitution in PepsiCo Inc. and Ors. v. Hindustan Coca-Cola Ltd. and Anr. It did, however, issue a warning that deceptive and hostile assertions made against a rival product are not protected and may be stopped by injunctions.[8] The Court ruled that although exaggerated language or puffery is permissible, claims that the competitor’s product is unsafe, damaging, or inferior without supporting evidence will be considered unfair commercial practices and subject to legal action.

Additionally, this jurisprudence is consistent with academic study. According to Dr. S.N. Jha and S.L.D. Pandey, Indian courts have taken a cautious but progressive stance, permitting comparison advertising as long as it educates consumers and doesn’t damage a competitor’s reputation.[9] They point out that in order to preserve fair competition in the market and safeguard brand reputation, the judiciary has established a balanced framework that encourages true and verifiable assertions while restricting subjective or inaccurate comparisons.

The significance of visual and tonal elements in assessing whether an advertising is insulting has also been emphasized by courts in more recent rulings. The Bombay High Court, for instance, barred HUL from running an advertisement that visually mocked frozen sweets prepared with vanaspati in Hindustan Unilever Ltd. v. Gujarat Cooperative Milk Marketing Federation Ltd., indicating that even non-verbal hints can qualify as disparagement.[10]

COMPARATIVE ADVERTISING VS. DISPARAGEMENT

Through direct or indirect comparison, comparative advertising enables firms to emphasize the relative superiority of their products. Exaggerated assertions like “best in class” are examples of acceptable puffery, which are subjective and cannot be objectively verified. On the other hand, disparagement happens when a commercial implies or states that a rival product is subpar, dangerous, or flawed. The difference between the two depends on how the assertion is presented as well as its content. Article 19(1)(a) of the Indian Constitution recognizes competitive advertising as protected commercial speech; nevertheless, defamatory or false content directed at competitors is not covered by this protection.[11]

This is further supported by Uphar Shukla’s analysis, which states that while claiming that one’s goods are “best in the world” or “better” than those of competitors is acceptable, claiming that others’ goods are subpar is slander and subject to legal action under both product disparagement and trademark infringement laws.[12]

These guidelines were used in the PepsiCo Inc. v. Hindustan Coca Cola Ltd. case, where the court determined that while generic claims of superiority were acceptable, disparaging or ridiculing the competing product without supporting evidence went too far. In the Dettol and Santoor comparison (Wipro v. Santoor), the advertisement was also upheld because it praised the advertiser’s products without denigrating those of the competition.[13]

CONTEMPORARY ISSUES: ONLINE ADVERTISING AND INFLUENCER MARKETING

Advertising has changed in the digital age, bringing with it a number of ethical and legal challenges. Previously limited to print, television, or radio, comparative advertising has recently spread to digital platforms such as YouTube, Instagram, Twitter (X), and other social media outlets. Comparative claims are now more rapid, interactive, and extensive as a result of this change, but there are also new hazards associated with jurisdictional issues, a lack of regulation, and influencer abuse.

The cross-border nature of digital comparative advertising is one of the main obstacles. Without being constrained by regional advertising norms, a company with its headquarters in one nation might use digital platforms to attract customers in another by making statements about regional rivals. Since current trademark and advertising regulations are mostly territorial in character and comparative advertisements are frequently evaluated under local frameworks that are ill-equipped to handle transnational conflicts, Uphar Shukla correctly points out that this results in regulatory gaps.[14] In countries like India, where enforcement systems are still lagging behind the trends in internet advertising, this ambiguity becomes even more troublesome.

The emergence of influencer marketing is another modern problem. Influencers frequently make overt or covert comparisons between rival items, many of which are unsupported or not identified as paid advertisements. Mehta & Dixit warn that comparative advertising based on influencers presents a “legal grey zone,” particularly when the influencers make claims of superiority that lack scientific or empirical backing, frequently obfuscating the distinction between opinion and truth.[15] Because influencers have a significant impact on consumer perception and have little formal training on advertising ethics, it is simpler for firms to evade regulatory scrutiny.

Although the Advertising Standards Council of India (ASCI) has released influencer guidelines that demand complete disclosure of promotional content and insist on truthful, verifiable claims, especially in comparative contexts, courts in India have not yet rendered a definitive decision on influencer-led comparative advertising.[16] Nevertheless, these rules are still not strictly enforced, particularly when it comes to anonymous viral marketing or cross-border influencers.

Furthermore, accountability is made much more difficult by user-generated content (UGC). Questions concerning vicarious accountability and brand culpability surface when similarities that mirror the company’s rhetoric start to proliferate through memes, parody films, or comments made by unaffiliated third parties.[17] To sum up, digital platforms have expanded the reach and inventiveness of comparison advertising while simultaneously obfuscating the conventional lines of accountability, authority, and verifiability. Given the dynamic nature of online consumer behaviour and the lack of unified worldwide regulation, it is imperative that stronger digital ad standards, influencer accountability, and accelerated dispute resolution procedures be implemented to ensure that comparative advertising remains both equitable and legal.

CONCLUSION

When used responsibly and legally, comparative advertising is an essential instrument for empowering customers and promoting market competition. It gives companies the flexibility to differentiate their goods and emphasize their benefits, which promotes innovation and raises the caliber of their output. From the standpoint of the consumer, it improves well-informed decision-making by providing choice clarity. But when advertising go too far and start making untrue statements, falsifying information, or maliciously disparaging other businesses, this practice becomes problematic.

Under the Trade Marks Act of 1999, comparison advertising is allowed in India, but it must be truthful, fair, and not deceptive. This framework is further supported by ASCI’s ethical guidelines and the Consumer Protection Act of 2019. Notwithstanding these provisions, enforcement and regulation face additional difficulties as influencer marketing, internet advertising, and cross-border campaigns become more common. Stricter digital ad monitoring, prompt court intervention, and more robust enforcement measures are necessary to guarantee that comparative advertising continues to be a force for good rather than deceit. Campaigns for public awareness and business ethics training in advertising can also make a big difference. In order to ensure honesty, equity, and respect for rival businesses, competent comparison advertising must ultimately carefully balance consumer protection with economic flexibility.

REFERENCES

1. The Trade Marks Act,1999, s. 30(1) (India).
2. Reckitt & Colman of India Ltd. v. Kiwi T.T.K. Ltd., 1996 PTC (16) 393 (Del).
3. The Consumer Protection Act, 2019, s. 2(47) (India).
4. Central Consumer Protection Authority, Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022.
5. Advertising Standards Council of India (ASCI), Code for Self-Regulation of Advertising Content in India, available at https://ascionline.in.
6. PepsiCo Inc. and Ors. v. Hindustan Coca-Cola Ltd. and Anr., 2003 (27) PTC 305 (Del).
7. Hindustan Unilever Ltd. v. Gujarat Cooperative Milk Marketing Federation Ltd., 2017 SCC Online Bom 5623.
8. Mehta & Dixit, The Legal Boundaries of Advertising: Puffery, Disparagement, and Comparative Advertising (Jan 13, 2025).
9. Uphar Shukla, Comparative Advertising and Product Disparagement vis‑à‑vis Trademark Law, 11 J. Intell. Prop. Rts. 409, 411–13 (2006), available at: https://docs.manupatra.in/newsline/articles/Upload/597132AB-96EC-4DB0-8A82-8D732D603A14.pdf
10. Wipro Enterprises (P) Ltd. v. Santoor Hand Wash (“Dettol–Santoor Case”), Delhi High Court (referenced in comparative‑advertising literature).
11. S.N. Jha & S.L.D. Pandey, Comparative Advertising: Ethical Issues and Solutions, in Emerging Trends in Management and Information Technology 245 (2010).
12. Sunitha Ezhumavil, Comparative Advertising: The Ifs and Buts in Indian Law, 8 IUP L. Rev. 28 (2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3280457 

[1] The Trade Marks Act,1999, s. 30(1) (India).

[2] Reckitt & Colman of India Ltd. v. Kiwi T.T.K. Ltd., 1996 PTC (16) 393 (Del).

[3] The Consumer Protection Act, 2019, s. 2(47) (India).

[4] Central Consumer Protection Authority, Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022.

[5] Advertising Standards Council of India (ASCI), Code for Self-Regulation of Advertising Content in India, available at https://ascionline.in.

[6] Sunitha Ezhumavil, Comparative Advertising: The Ifs and Buts in Indian Law, 8 IUP L. Rev. 28 (2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3280457  (last accessed July 13, 2025).

[7]  Ibid. at 02

[8] PepsiCo Inc. and Ors. v. Hindustan Coca-Cola Ltd. and Anr., 2003 (27) PTC 305 (Del).

[9] S.N. Jha & S.L.D. Pandey, Comparative Advertising: Ethical Issues and Solutions, in Emerging Trends in Management and Information Technology 245–246 (2010), available at https://www.researchgate.net/publication/374419705.

[10] Hindustan Unilever Ltd. v. Gujarat Cooperative Milk Marketing Federation Ltd., 2017 SCC Online Bom 5623.

[11] Mehta & Dixit, The Legal Boundaries of Advertising: Puffery, Disparagement, and Comparative Advertising (Jan 13, 2025).

[12] Uphar Shukla, Comparative Advertising and Product Disparagement vis‑à‑vis Trademark Law, 11 J. Intell. Prop. Rts. 409, 411–13 (2006), available at: https://docs.manupatra.in/newsline/articles/Upload/597132AB-96EC-4DB0-8A82-8D732D603A14.pdf

[13] Wipro Enterprises (P) Ltd. v. Santoor Hand Wash (“Dettol–Santoor Case”), Delhi High Court (referenced in comparative‑advertising literature).

[14] Ibid. at 05.

[15] Ibid. at 05.

[16] Advertising Standards Council of India (ASCI), Guidelines for Influencer Advertising on Digital Media, available at https://ascionline.in (last accessed July 13, 2025).

[17] S.N. Jha & S.L.D. Pandey, Comparative Advertising: Ethical Issues and Solutions, in Emerging Trends in Management and Information Technology 245 (2010).

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