DISPARAGEMENT IN TRADEMARK

Abstract

Trademarks have been used for centuries. Earlier it was primarily used for identifying the goods of one from another. Repetitive use of trademarks on goods helped people to associate the goods with the marks until they became a brand. Today trademarks are increasingly used as an important tool for advertisement. However, today’s market is that of cut-throat competition where often competitors indulge in illegal and immoral practices to increase sales of their own goods and services. Disparagement of trade mark means belittling the trade mark of other. Remedy for disparagement can be found under common law in form of damages and injunction for tort of disparagement, as well as under S 28 of the Trade Mark Act, 1999. Though the law prohibits disparagement, it does not prohibit comparative advertisement per se, or honest use of another’s trademark. The paper seeks to bring out the subtle differences in between the term’s disparagement, passing off, puffing and comparative advertisement with the help of landmark cases delivered by courts of law. The paper also throws light upon the guidelines issued by the Advertising Standards Council of India (ASCI). While comparative advertisement is essential for consumers to be able to compare the goods and services of various competitors, yet it is also important to ensure that the advertisement does not harm the reputation or the trademark of the competitor.