The downside of putdown: How Indian laws view disparagement in advertising

To promote a summer beverage manufactured by his company, yoga guru Ramdev recently alleged in a promotional video that a rival company was engaged in “sharbat jihad” — a loaded phrase suggesting that the proceeds of sales would support a particular religious cause.

 

The statement sparked a row, and Ramdev took down the content after the Delhi High Court issued a sharp rebuke. But the controversy has reignited a longstanding debate around advertising ethics, commercial speech, and what the law defines as disparagement. 

There exists a fine line between disparaging and competitive advertising. The nature of the comparison is where the difference lies. While the former is done with negative intent and often demeans the competitor, competitive advertising showcases a brand’s strengths. 

Also, comparative advertising is allowed within certain leg­al and ethical boundaries. However, when those comparisons become misleading, malicious, or defamatory, the law steps in. 

Disparagement, though not statutorily defined in Indian law, is a recognised tort under common law and has been shaped largely through judicial interpretation, said Sonal Alagh, partner at New Delhi-headquartered law firm Alagh & Kapoor Law Offices. 

“In commercial contexts, it typically refers to false and malicious statements that discredit the goods or services of a competitor,” she explained. “Courts have applied principles under Section 29(8) read with Section 30(1) of the Trade Marks Act, 1999, which restrict comparative advertising that is misleading or denigrates another’s trademark,” she added. 

Advertisements that succeed in being competitive often use humour, creativity, and clever wordplay without being offensive, explained advertising professional K V Sridhar, who is also the global chief creative officer at consulting firm Nihilent. 

Disparaging advertisements with negative intent do not connect with audiences and are often forgotten, Sridhar said, adding that advertisements that mock consumers for their past choices are ineffective and can alienate them. 

Pushing the boundary 

In the United States, comparative advertising enjoys broader leeway under free speech protections. Snarky ads, like Pepsi’s playful jabs at Coca-Cola, are common and tolerated — unless demonstrably false or misleading. 

However, Indian courts, while deciding on such issues, adopt a stricter stance, prioritising brand reputation and public perception over humour, Sonal Madan, partner at New Delhi-based Chadha & Chadha IP Law Firm, said. This cultural and legal divergence reflects India’s emphasis on reputational integrity, she added. 

Courts have also taken into cognisance the fact that advertisement campaigns or visual media have an immediate impact on the minds of viewers and purchasers, Sohini Mandal, founder at Mumbai-headquartered law firm Nilaya Legal, said. 

An ad campaign by Amul, for instance, had claimed that only desserts made from real milk qualified as ice-cream, while those made from “vanaspati” were frozen desserts. Hindustan Unilever filed a case against Gujarat Cooperative Milk Marketing Federation, which runs and manages Amul, on the matter, and the Bombay High Court held that Amul’s ad campaign was disparaging. 

In other cases, courts have taken the stance that comments by social media infl­uencers against consumer brands, when backed by scientific evidence, do not amo­unt to defamation. Last month, the Delhi High Court laid down the broad contours for the protection of social media influencers locked in legal battles with large companies. 

“While in the 2024 matter of Zydus versus Prashant Desai, in Delhi High Court, it was held that a social media influencer cannot express his/her ideas or opinions freely without any substantive basis and/or backing, the underlying principle that the courts are seemingly applying is that commercial speech that is deceptive, unfair, misleading or untruthful would be restricted,” Mandal said. 

Friendly banter, or not 

Disparaging advertisements are intended to shock at two levels of trade and consumer, Sandeep Goyal, chairman of advertising firm Rediffusion, said. “The public affronts help the sales team with trade, shows fearlessness in claims of product superiority, and displays a never-say-die attitude, which helps market confidence. For consumers, it does help with fence-sitter conversion,” he added. 

In a court of law, any aggrieved company must establish that the advertisement in question references their prod­uct explicitly or impliedly; that the claims made are false or misleading; that there was intent to cause harm or ridicule; and that there is a likelihood of consumer confusion or reputational damage, Alagh said. 

Comparative advertising, on the other hand, is legal if it does not amount to unfair attacks on competitors, experts said. Comparative advertising involves brands comparing their products or services with com­­p­e­titors to highlight superior quality or efficacy, Lavin Hirani, managing partner at law firm Hirani & Associates, Mumbai, said. 

Good competitive advertisements engage and entertain, with forgiving, frien­dly banter, rather than seriously attacking each other, Sridhar said. 

Brands are allowed to highlight their strengths against rivals if the statements made are fact-based and verified, added Alay Razvi, managing partner of law firm Accord Juris, Hyderabad. “It will not be permissible if it is humiliation, misleading, or malicious comparisons that can tarnish someone’s brand image,” he added. “If the line is crossed, the advertising moves from healthy competition to intentional denigration,” he added. 

Challenger brands, which sell products that are not market leaders or at the top of the market, can make an impact by “punching up” at market-leading brands, leveraging their strong recall to highlight the challenger brand’s advantages. But when top brands “punch down”, it often invites backlash, Siddharth Devnani, co-founder and chief operating officer  at SoCheers, a digital-first creative agency, said. 

The line might be fine, but in the eyes of law, it is firm. 

Legal framework

 

Consumer Protection Act, 2019: Identifies misleading advertising as an unfair trade practice, with penalties of ₹10–50 lakh and orders to remove or modify ads

 

Trade Marks Act, 1999: Protects trademarks from being misused in advertising that could harm their reputation

 

Civil Law (Tort of Defamation): Allows affected brands to sue for reputational damage

 

Advertising Standards Council of India code: Industry’s self-regulatory code, which influences advertising ethics but lacks statutory power

 

Article 19(1)(a) of the Constitution: Protects commercial speech, including advertisements, subject to reasonable restrictions under Article 19(2)

 

Competition Act, 2002: The Competition Commission of India may investigate advertisements creating market dominance through unfair practices

 

Key precedents

 

PepsiCo versus Hindustan Coca-Cola (1999): Held that puffery is allowed but not disparagement

 

Reckitt Benckiser (India) Ltd versus Naga Ltd and Ors (2003): Held that truthful clarification of a competitor’s product (e.g., Dettol soap’s lack of antiseptic properties) does not constitute disparagement

 

Reckitt & Colman of India Ltd. versus MP Ramachandran & Anr (2010): Established that brands may claim superiority but cannot falsely depict competitors’ products

as inferior 

 

Colgate-Palmolive versus Hindustan Unilever (2014): The court allowed comparative ad but banned the ad’s TV version for mocking the competitor’s product