Contours of comparative advertising and trademark disparagement in India

As companies vie to capture the attention of India’s growing consumer base, they are increasingly resorting to comparative advertising in a bid to enhance the visibility of their products, drive sales, and establish the supremacy of their brands over rival products.

The courts have specifically held that there is no bar against comparing features of two products to claim superiority over a competitor’s offering or against making a general comparison if this is truthful. When making such a comparison, the advertiser cannot claim that the competitor’s product is bad. In other words, the advertiser can claim that its product is superior but cannot denigrate the competitor’s product or call it inferior.

The proponents of comparative advertising argue that it helps to promote healthy competition. However, the downside is that each case is dependent on its facts and businesses attempt to push the boundaries to attract consumer attention. While the laws and judicial interpretations have set some boundaries in this regard, different views and wide interpretations abound, making this a grey area.

Comparative advertising generally involves:

• A direct comparison with a competitor’s product to highlight the specific features of the product and comparing it with a leading product that enjoys a larger market share;

• Comparison by insinuation, whereby the competitor’s product packaging, ‘tag line’, or other brand elements are used to refer to the product indirectly; or

• Advertisers comparing a product attribute with an entire spectrum of products in that category; thus, indirectly hitting the product leader in that category. 

Section 29(8) of the Trade Marks Act, 1999 sets forth that use of a registered trademark by an advertiser constitutes infringement if it:

• Takes unfair advantage of the trademark’s reputation;

• Is contrary to honest practices in industrial or commercial matters;

• Is detrimental to the trademark’s distinctive character; or

• Damages the reputation of the trademark.

In comparative advertising cases, the court is often asked to determine whether the comparison has been made to disparage the goods of the proprietor or if it is mere puffery.

The Advertising Standards Council of India (ASCI) has established The Code for Self-Regulation of Advertising Content in India to ensure truthfulness and honesty in advertisements. The code provides that advertisements containing comparisons with other manufacturers or suppliers, or with other products, including those where a competitor is named, are permissible in the interests of vigorous competition and public enlightenment, subject to the following requirements being satisfied:

• It is clear what aspects of the advertiser’s product are being compared with what aspects of the competitor’s product;

• The subject matter of the comparison is not chosen in such a way as to confer an artificial advantage upon the advertiser or to suggest that a better bargain is offered than is truly the case;

• The comparisons are factual, accurate, and capable of substantiation;

• There is no likelihood of the consumer being misled as a result of the comparison, whether about the product advertised or that with which it is compared; and

• The advertisement does not unfairly denigrate, attack, or discredit other products, advertisers, or advertisements, directly or by implication.

With the growing use of the internet, the introduction of influencer marketing, and a deviation from traditional marketing strategies, courts are witnessing a rise in trademark disparagement cases.

A recent case that attracted considerable media attention was a trademark disparagement suit filed by Royal Challengers Sports Private Limited (RCB) against Uber India Systems Private Limited.

In April 2025, Uber posted an advertisement on its social media platforms that forms the crux of the dispute between the parties. Uber’s advertisement showed the famous Australian cricketer Travis Head, who plays for the Indian Premier League team Sunrisers Hyderabad, going into a stadium in Bengaluru, the home town of RCB, and changing the name “Royal Challengers Bengaluru” to “Royally Challenged Bengaluru” with spray paint. The advertisement then showed Head getting on an Uber motorbike, which arrived within the promised three minutes, and escaping the premises.

RCB claimed that the change of the name of its cricket team to “Royally Challenged Bengaluru” violated its rights in the trademark ‘Royal Challengers Bengaluru’ by disparaging and infringing its trademark and diluting the same.

Uber rebutted the claims by asserting that the advertisement was a comedic tease/parody and promoted light-hearted banter, and that the focus of the advertisement was to show that the motorbike ride booked through Uber reached its destination within the time shown on the Uber app. Uber also argued that the culture surrounding cricket is ripe with such thematic humour, the same is appreciated by the fans, and there was no scope of confusion, infringement, or dilution, since the parties were engaged in completely different industries.

After hearing both sides and analysing the judicial precedents relied on, the court passed an order discussing the aspects of disparagement and infringement of RCB’s trademark.

Firstly, the court held that to prove disparagement, it must be shown that the advertisement intended to demean, denigrate, or defame the RCB marks with a view to cause injury or harm. The court opined that the intent of the advertisement was to show that the services provided by Uber are fast, reliable, and arrive in a timely fashion. The court also noted that Head is not wearing the jersey of his team in the advertisement; no reference to Sunrisers Hyderabad is made; there was no comparison of the teams, their players, or statistics; and nothing in the advertisement denoted commercial exploitation or denigration of RCB’s trademarks by Uber. Therefore, it fell within the ambit of fair use.

Secondly, the court held that the provision of law governing infringement by entities operating in different fields had not been satisfied, and it did not find the advertisement infringing the trademark rights of RCB.

The judgment weaves together principles of free speech granted by the Constitution of India with those governing disparagement and trademark infringement to arrive at a cohesive ruling.

Another interesting case was recently brought by Hamdard Laboratories (India), the maker of the popular summer drink Rooh Afza, against Baba Ramdev and his company, Patanjali Ayurved Ltd., for promoting a rival drink through false allegations that profits from the sale of Rooh Afza were being used to support religious institutions; specifically, madrasas and mosques. Hamdard claimed Ramdev’s remarks were disparaging and defamatory, resulting in brand denigration.

In April 2025, the High Court of Delhi strongly criticised the comments, calling them “indefensible” and “shocking” to the conscience of the court. Following the court’s intervention, Ramdev and Patanjali agreed to remove the videos in which the claims were made and gave an undertaking to not make further disparaging remarks about the brand Rooh Afza.

Comparative advertising can be effective in differentiating a product and helping consumers to make well-informed decisions, but it needs to be truthful, respectful, and strategic to avoid unintended consequences. Overall, the judicial precedents and ASCI’s active role in regulating advertising have contributed to maintaining and enhancing the public’s confidence, and to brands preserving their sanctity.