[Volume.1, Issue.1]
Avinash K R
BBA LLB(H), 8th Semester
Amity Law School, Noida
Ph. No. 9560015330
kravinash.akr911@gmail.com
Abstract
With
the world opening up through globalisation, liberalisation and foreign
investments and the markets flooded with competitors making variety of claims
regarding their products, the need to protect consumers is the need of the
hour. Firms and companies in this era engage in unfair and dishonest practices
while marketing their product, which either affects the consumers or the
competitors. Whereas the protection of the consumers can be sought under the
Consumer Protection Act, 1986, the competitors are protected by the Trademark
Act, 1999. The existing precedents however carve an exception in the form
“puffery” to making statements in advertisements, which bloat up the image of
the product to great heights without affecting the other competitors. Stepping
aside from this practice, the Madras High Court in Colgate v. Anchor has made puffery also an unfair practice vide
section 2(r) of the Consumer Protection Act, 1986 to protect the interests of
the illiterate masses in India. In light of this development, the author
discusses the current status of law relating to comparative advertisements and
puffery and suggests the way forward in judicial interpretations involving
puffery and comparative advertisements.
LAW
OF COMPARATIVE ADVERTISEMENTS: AN ANALYSIS
Introduction
In
an era of free markets which are filled with new service/product providers,
seeking to get a healthy market share, advertising is no longer about reminding
customers about products, presenting offers to them and boosting sales. Today,
advertisements are seen as a medium to take competition head on, in the
globalised market by creating attractive advertisements mostly in the form of
visuals, which not only represent the product advertised as superior, but also
degrade the competitors product as inferior. Such comparative advertisements have
caught the attention of customers and have helped companies boost sales but not
without the rights of the rivals have being breached, providing them the right
to sue for damages in ‘disparaging suits’. Under these circumstances, the courts of been
called upon to time and again to draw the line between freedom of speech and principles
of commercial and comparative advertising. Several High Courts and the apex
court, after a number of cases have laid down the principles of commercial
advertising, which although not uniform and exhaustive, provide the basic norms
that ought to be followed by corporate in advertising their products.
To
understand the law relating to disparaging advertisements, it would be useful
to discuss the roots of disparaging suits in common law, which have evolved
over the years through judicial precedents. In common law, the practice of
disparaging advertisements has been a tortuous offence since late 18th
century. Traces of such advertisements/publications can be seen in common law as
early as 1892 in the case of Ratcliffe v.
Evans,[1]it
was held that the mere false publication that a particular company has gone out
of business amounts to disparagement. Following this, a number of suits have
been instituted in the courts of England pertaining to breaches of several laws
including trademark and copyright law in England. A few to state here could be Harwood Pharmacal Co. v. National
Broadcasting Co.[2];
National Ref. Co. v. Benzo Gas Motor Fuel
Co;[3]Auvil
v. CBS "60 Minutes"[4]; Rorvig v. Douglas[5], etc. Similarly, in the US too, there
were several cases of disparaging advertisments even in the 1980’s such as the Castrol, Inc v. Quaker State Corp[6]; Tobin Wolf & Schaper Mfg. Co. v. Lewis
Marx & Co[7];
PCB Peizotronics Inc v. Kistler Instrument Corp.[8];
Atlantis mutual Ins. Co v. J. Lamb Inc.[9];
etc. For nearly a century, there was hardly any disparaging suit in the
courts of India, however, due to liberalisation and cut throat competition,
today, there are more than 15 reported judgements of several high courts in
this aspect.However, it all kick started in India in the late 1990’s with a
series of disparaging advertisements being telecasted by Pepsi and Coca Cola against
one another followed by the Horlicks - Complan spree of disparaging one
another. Another epic in such disparaging advertisements was between Jet
Airways and Kingfisher Airlines where the former claimed in its hoarding ‘We
changed for good’ whereas the latter claimed in its hoarding right next to the
formers saying ‘We made them change’. With this started a series of litigations
by several parties affected, which has enabled different High Courts and the
apex court lay down the principles pertaining to commercial and comparative
advertising.
Today,
there exists a good 20 – 30 reported cases in matters of
disparaging advertising which lay down basic principles of advertising in some
aspects but have put forth conflicting opinions upon others. In light of these
conflicting decisions, this essay tries to discuss in detail the principles of
commercial and comparative advertising as laid down by different high courts
and the conflict between opinions of different high courts to critically
suggest what could be the right approach to advertising in a country like
India. Also, it shall make a comparison of the existing law of disparaging
advertisements with those of other countries to make suggestions as to what
could be the dividing line between freedom of speech and expression and
disparaging advertisements.
Comparative Advertising
and Product Disparagement
Comparison
is a part of human nature and comparative advertising is just a reflection of
such nature of mankind. One can easily say, comparative advertising is by far,
one of the most effective ways of advertising today, which although is not
without risk. Such advertisements have helped traders define their products and
differentiate them from other competing products in the market, thereby providing
customers vital information about different products in the market, helping them
in their decision making process.
‘Comparative
advertising’ is a term used to describe advertisements where the goods or
services of one trader are compared with the goods or services of another
trader.[10] A
US survey reveals that there are mainly three categories into which
advertisements fall, namely:[11]
· Non Comparative
Advertisements: Advertisements that do not compare themselves with any of their
competing products, either directly or indirectly. Eg. ‘Hum mein hain hero’
Advertisement of HERO.
· Indirectly Comparative
Advertisements: Advertisements that refer to a competing product in an indirect
manner. Eg. Colgate calling
itself ‘the most preferred brand of dentists’ thereby comparing it with other
brands as being less preferred compared to Colgate.
· Directly Comparative
Advertisements: Advertisements in which a competing product is specifically
named or recognised precisely. Eg. Mountain Dew advertisement referring to
sprite as ‘frite’.
Advertisements
falling under the last two categories are called as comparative advertisements.
The law relating to comparative advertisements in different countries is
different. For eg, in UK where both forms of comparative advertisements are allowed,
advertisements puffing a product as the world’s best product, etc. are allowed
whereas in Germany, where no form of comparative advertisements are allowed, an
advertisement stating that it is the world’s best would be seen to mean other
products are lesser than it and hence would make the advertiser liable.[12]Comparative
advertisements usually enable a competitive market by way of comparison between
price, quality, quantity and other values of a product with its competitors,
thereby providing crucial information which forms the basis of a free market.
However, it is to be kept in mind that comparative advertising is not without
demerits and not restricting the same would lead to puffing and misinformation
which is always a risk in customer interest.[13] In
this aspect, restrictions can be several, such as restriction on all kinds of
comparative advertising, restrictions on taking names of competitors,
restrictions on puffing, restriction on misinformation, etc. This article will
examine the evolution of such restrictions upon comparative advertisements in
India wherein, the law in essence states that a person may in comparison to a
product say that his product is better in all aspects, but cannot state that
the competitor’s product is bad compared to theirs. Also, this article will
examine the latest judicial trends which courts have adopted in enforcing this
law.
Product Disparagement –
Meaning
The
word ‘disparage’ has been defined in Black Law Dictionary as ‘connect something
unequally’ or ‘dishonour somebody or something in comparison’ or ‘unjustly
discredit or detract from the reputation of’ or ‘false and injurious statements
that discredit or detracts from the reputation of some product, property or
business.’[14]
Thus, any act that discredits or detracts the reputation of any
product/property/business in an unjust manner could be classified as a
disparaging act.
Product
disparagement is not merely restricted to comparative advertising but includes
in its ambit several acts such as acts of third parties in newspaper articles
which criticize products, symbols or signs on the package of the product which
disparages the other, etc.[15]
There are statutes of several states that restrict these kinds of
disparagement, including third party disparagement.[16]These
statutes provide a right to food product producers whose products are
criticized without proper and reliable scientific material.[17]
However, these statutes do not govern comparative advertisements in specific
and may also govern situations where there is no comparison at all or even
cases where there is no advertisement at all.[18]
Battle between
Comparative Advertising and Product Disparagement
There
are several views as regards to the interface between comparative advertising
and product disparagement. Whereas on view has been that these being economic
in nature and in furtherance of marketing of products should be confined to the
market to ensure that the same remains free whereas the other view seems to be
one where a company can praise its product as much as it wants but without
defaming or discrediting the rival products.[19]In
other words, courts have discouraged any sort of defamation/discrediting of anyspecific
product/ rival whereas a general comparison of rival products in the market has
been allowed time and again by courts.[20]Also,
another view seems to evolve where courts have become more vigilant upon
advertisements that ‘puff’ about their products and the reasoning provided by
followers of this view is that in a society where illiteracy is common, such puffing
would be against the best interests of the consumers. It is true that liberal
markets and fierce competition put companies under great pressure to advertise
their products heavily to ensure success of a product but it would be wrong to
say that to further this end, product disparagement could be kept out of the
ambit of interference into markets by courts.
Indian Law and
Comparative Advertising
The
law relating to comparative disparaging advertisements is rather a new
development in India. One can attribute the development of such laws to India’s
obligations under the TRIPS owing to which the Trademarks Act, 1999 and the
Trademark Rules, 2002 have been passed.[21]
The Act, defines the term trademark in a wide ambit to include any well-known
mark in relation to any goods or services, which is known to a segment of the
market which uses such goods or services.[22]
The law, although has recognised such wide definition even prior to the TRIPS,
however, did not protect the holder of the trademark from mere usage of the
same. The Hon’ble Court in the case Bismag
v. Amblins[23]
held that the use of a mark would only amount to an infringement if the same
was used as a trademark. The same was also upheld by the court in view of the
same ratio decidendi in the case of Yeast-Vite.[24]The
Indian Act, Trade and Merchandise Act, 1958 although not an equivalent to the
UK law, however followed the view propounded by the court in the aforementioned
cases. Thus, in India, for any person to be held liable for an infringement of
a trademark, the complaint was required to be of a nature of ‘use of a registered trademark.’[25]
The
current Trademarks Act, 1999 has contains several provisions comparable with
section 29 and 30 of the UK Act under which, comparative advertising is
permissible within the limits of unfair trade practices. Under the said Act, section
29(8) enunciates the situations under when the use of a trademark may be termed
an infringement and clearly provides that any advertisement which is not in
accordance with honest practices or which is of such nature that it could be
detrimental to any distinctive mark or bring disrepute to the mark shall
constitute infringement.[26]
However, the Act itself under section 30(1) recognises an exception to the said
provisions in the nature of comparative advertisements. It is a positive
enactment which clearly provides that any advertisement which is in accordance
with honest practices, is not detrimental to any distinctive mark and does not
bring disrepute to such mark is allowed and does not constitute an
infringement.[27]
The words ‘detrimental to the distinctiveness of the mark’ has been subject of
interpretation by courts which has caused some confusion in the minds of legal
researchers.[28]
It may at one end be perceived as a situation where a competitor for the
purpose of indicating the origin of his goods uses the registered trademark,
and thereby causes confusion about its origin.[29]
However, these issues may not arise very often in the cases of disparaging
advertisements. On the other hand, it may also be perceived as that situation
where a competitor compares his own product with his the product of his
competitor by degrading the competitors product or mark.[30]
This may be done either by directly comparing the product of competitor with
ones own product or by a general comparison. Thus, notwithstanding whether the
competitor (advertiser) disparages or discloses the origin of the products or
not, the products are a subject of disparagement and it is this viewpoint that
needs to examined to see whether it is ‘in accordance with honest practises’
and ‘is not such as to detrimental to repute of the trademark.’[31]
The
words, ‘in accordance with honest practises’ are subjective and there can be no
one clear test or interpretation to this as such. While the said phrase could
be interpreted as a condition requiring advertisers to uphold and follow a set
of code of conduct in business, the courts have rejected such interpretation due
to the varying standards across the country.[32]
While the enactment in section 30 has been interpreted to allow comparative
advertising, courts have called the proviso to it ‘a mess’.[33]
It is submitted that the meanings of the phrases ‘in accordance with honest
practises’ and ‘is not such as to detrimental to repute of the trademark’ are
intertwined and both should be interpreted to aid one another[34],
i.e. any practice that is detrimental to the repute of any distinctive mark
should also been seen as a dishonest practice. Similarly, any comparison made
by any advertiser which says that the competitors’ product is not desirable or
is bad is slanderous and would amount to defaming the competitor and his goods
and is a dishonest practice as it is degrading the competitors name, mark and
reputation.
Claims regarding
products – test for honest practices
A
highly open question whether the claims made by an advertiser in a particular
advertisement is ‘honest or not’ may arise in some cases. In such cases, the
question of honesty should be answered from the point of view of a reasonable
consumer i.e. it should be seen whether a reasonable consumer could be presumed
to presumed to ignore the claims that are considered to be exaggerated,
hyperbole, would be likely to say that the advertisement was honest.[35] A
question that further arises is one of quantity i.e. how many have been or
would have been incluenced by such advertisement and would have purchased the
product, which they otherwise might not have. An even worse situation arises in
cases where the consumers perceive an advertisement taking unfair advantage of
the reputation or of the distinctive character of the mark as an honest
practise.[36]
It is submitted that these situations need immediate attention from the
legislature and courts and this point of law should be clarified at the
earliest. It is however the submission of
the author that in such cases too, the advertisements should be
considered dishonest as in a country like ours, where there is widespread
illiteracy and ignorance, corporates and companies in the market should not be
allowed to take advantage of their innocence to sell their products and disparage
the products of competitors.
Further,
there may arise situations where the advertisement which does not have anything
against any particular mark but has several faults such as: does not compare
‘like with like’ and contains information that is false, highly misleading and
dishonest. In such cases, the competitor has no remedy against the advertiser
for the want of cause of action[37]
and as such it permits ‘puffery’ as long as it does not disrepute any
particular mark.[38]
In other words, an advertisement with false content or which is substantially
false shall not be dishonest under the Act whereas one which materially disparages
another’s products or mark or any other thing shall be dishonest under the Act.
The burden of proving any such disparagement is upon the owner of the mark to
show that the use of the mark is unauthorised and dishonest.[39]
However, where the content of the advertisement has more than one meaning, it
is enough for the owner to prove that any one of the meanings presented by the
advertisement is wrong.[40]
Puffing under Indian
Law
Puffing,
in general refers to a superlative claim made by a producer about his product,
which an average consumer may not believe.[41]
For example, a claim that a particular brand of coffee is the best coffee in
tge world is most likely to be construed as a puff. This claim is by its very
nature subjective and it is most likely that the consumers would not believe it
to be the best coffee in the world. On the other hand, such statements need to
be differentiated from statements that are quantitative in nature such as the
‘cheapest coffee in the market’. ‘Cheapest’ is an objective standard as against
‘best’ which is a subjective one. The necessity of differentiating puffery as
such is due to the leeway provided by courts to subjective puffs. The courts
have tended to provide more leeway to subjective puffs as against objective
ones as in view of the courts the puffs of the latter kind tend to influence
people more into buying a product as they are easier to believe than the
subjective ones.[42]
The court, in the case of Reckitt
Benckiser v. Hindustan Lever Ltd,[43]
observed that the for claims relating to commercial disparagement to
succeed in cases of comparative advertisements, the court is required to
examine the case from the perspective of an average man from the target market
with imperfect recollection. It was said ‘CCD sells the best coffee’ is
unlikely to make much of an impact on the group of coffee lovers whereas ‘CCD
sells the cheapest coffee’ might have caused some switching over. On the basis
of this rationale, the court
concluded that a trademan is within the law when he proclaims his goods as the
best in the world even if such declaration is totally untrue. The court held
that mere puffing was not an actionable wrong.
The
law relating to comparative advertisements and puffery as declared by several
courts including the apex court can be summarised as follows:[44]
·
Sections 29(8) and
30(1) primarily permit comparative advertising.
·
The only obligation
upon the advertiser is that the use of a competitors mark must be honest.
·
There is nothing wrong
in comparing the products of a tradesman with those of his competitors, telling
them the merits of using a particular product.
·
The burden of proof is
upon the owner to show that the factors mentioned in the proviso to the section
are applicable.
·
There can be no claim
for infringement unless it is shown that the mark has been used against honest
practices.
·
The objective test for
a comparative advertisement would be to see whether a reasonable viewer is
likely to call it honest
·
Statutory or industrial
codes of conduct are not sufficient to determine whether a particular practice
is honest or not and the same is determined for the purposes of section 29 and
30 in view of the impact of such advertisements on the public who buy and use
the product.
·
The courts have not and
cannot impose any particular norm as a standard required to be met for public
advertising.
·
An advertisement which
is significantly misleading is not honest under the Act.
·
An advertisement should
be seen as a whole and not as parts
·
If the background of an
advertisement, as a whole, justifies the description given in it although it
may be misleading for interlocutory purposes, the same should be permitted.
·
A minute textual or
word by word examination of the advertisement is unwarranted
·
A microscopic approach
to the construction of an advertisement should be avoided.
The Madras High Court –
A deviation from the existing law
The
Madras High Court, in its decision in the case of Colgate v. Anchor[45]
has done away with all differences between subjective and objective claims
by holding all puffing as actionable wrong. In this case, the court was
approached by Colgate Palmolive to decide upon the advertisement of Anchor,
where it claimed itself to be the ‘only’ and ‘first’ toothpaste to provide
all-round dental protection amounted to disparagement. The claims by their very
nature being objective could have been held to be disparaging and an injunction
could have been granted. The court however went on to declare all puffery as
illegal wherein it made a deviation from the existing precedents on the subject
matter.
The
primary reason behind such deviation by His Lordship V. Ramasubramanium J,
seems to be his concern for consumer protection. He observes in his decision
that the right to freedom of speech under Article 19 should be balanced with
the needs and rules on consumer protection. Further, justifying the deviation
from existing case law, his lordship observed that those cases have been
decided relying upon Old English Cases, which were decided before the times of
consumer protection. He holds that for any proper determination of legality of
puffing, it is necessary to take into account the existing consumer protection
laws. The court further went on to hold that any puff must amount to an unfair
trade practice under the Consumer Protection Act. The Court held that any puff
is against public interest and allowing competitors to puff is essentially
against it. The court makes it clear in the statement ’But the recognition of this right(to puff) of the producers, would be
to de-recognise the rights of the consumers guaranteed under the Consumer
Protection Act, 1986.’ As already stated, the court seems to have rejected
the decisions of the English Courts on the ground that they are prior to the
era of Consumer Protection Jurisprudence. However, most of the cases in Indian
Jurisprudence on the topic of comparative advertising is only after the coming
into force of Consumer Protection Act, 1986. This clearly indicates that the
general trend amongst Indian Courts seem to be to keep the two causes of action
separately, i.e. one w.r.t. consumer protection and another w.r.t. the tort of
commercial disparagement. However, in the decision of the Madras High Court,
His Lordship seems to have equated the interests of the consumers with those of
the competitors. His lordship observes that none
of the other decisions held that consumers would not have a remedy if there was
in fact a violation of consumer rights; they only held that this was not a
relevant factor in considering questions vis-a-vis competitors. Thus, from
the above words, the view expressed by the court seems to be that in the
absence of an express prohibition given under the law and in the absence of any
express statement prohibiting inclusion of consumer rights in earlier decided
cases on the subject, the court has the power to include those rights in cases
it deems appropriate.
A Comparison of the
Decisions of the Delhi High Court and the Madras High Court
From
the above discussion, it is clear that the law on the point of comparative
advertisements seems to be differing in different jurisdictions. For example,
as discussed in the Delhi decision, the differences in the standards of
objective and subjective claims are essential to be examined in order to
provide a leeway or a strict injunction prohibiting it as an infringement. On
the other hand, the Madras High Court does not recognise any difference between
subjective and objective claims and holds all puffing as illegal and unfair
trade practice. Similarly, the Delhi Decision seems to have given importance to
the competitors aspect of disparaging advertisements whereas the Madras High
Court seems to have laid more emphasis on the consumer rights part than the consumer
interest part. Whereas the public interest aspect of advertising and the role
of public advertisements as a means of promotion of products has been completely
neglected by the Delhi High Court, the Madras High Court seems to have centred
its conclusions completely on this basis.
Conclusion and the way
forward
From
the discussion regarding the law relating to comparative advertisements, it is
clear that under sections 29 and 30 of the Act comparative advertisements are
permissible. Only those advertisements that make materially false statements or
make objective claims that are significantly false are not permissible under
the Act as per proviso to section 30. It is generally good business practice
and good in view of public interest to allow comparative advertisements as they
allow comparison by competitors of their products against the products of their
rivals and highlight the merits of their products as against the others. The
line drawn for this comparison is a subjective standard of honest practices and
not bringing disrepute to the recognised mark of the competitor. It has been a
general finding of a few authors that the threshold as to how many consumers
need to be involved in bringing disrepute or to hold any practice as a
dishonest practice needs judicial clarification. It is submitted by the author
that no such specific number or recognition of threshold is required in order
to determine whether an advertisement is disparaging or not. The same may only
be required at that stage where it is found to be disparaging and the question
of damages arise.
Throwing
specific light on the decisions of the Delhi High Court and Madras High Court,
it is seen that there is a clear and latent conflict between the decisions of
the Delhi High Court and the Madras High Court and the law is required to be
settled by the Supreme Court. In the meanwhile, it is submitted that the right
position only lies in the balance that can be derived from reading both the
decisions together. In deciding cases relating to comparative advertisements,
the courts should keep in mind the interests of both the competitors and the
consumers. The courts while examining such cases need to keep in mind the
nature of the market existing for the product, kind of the product, the target
market to which the advertisement caters, the literacy level of the target
market, the special impact which it may have on children who may view the
advertisement are some factors that the courts may consider while deciding upon
an comparative advertisement. Also, the courts, while deciding cases of
comparative advertisements, should differentiate the weightage given to the
aforementioned standards. For example, in cases of frequently used consumer
products, more weightage may be given to consumer interests than to commercial
interests to prevent illiterate buyers from being mislead whereas in cases
where the target market is more educated, a certain level of leeway may be
given to companies while advertising. Also, a difference can be made on the
basis of necessary products and luxury products and the weightage may be
differentiated on this basis too. It is submitted that such differentiation
would enable courts to decide cases of comparative advertisements on a complete
case to case basis with the foundation of principles of law being uniform.
[2] Harwood Pharmacal Co.
v. National Broadcasting Co. 9 N.Y.2d 460, 174 N.E.2d 602, 214 N.Y.S.2d 725
(1961).
[8]PCB Peizotronics Inc
v. Kistler Instrument Corp [Case No. 96 – CV -0512E(F), 1997 WL 800874
(W.D.N.Y. Dec 31, 1997)]
[10] Council Directive
84/450/EEC of 10 September, 1984 concerning misleading and comparative
advertising (as amended by Council Directive 97/55 of the European Parliament
and of Council Amending Directive 84/550 Concerning Misleading Advertising as
to include Comparative Advertising)
[11]Pechmann
and Stewart, ‘The Development of Contingency Model of Comparative Advertising’,
Working Paper No. 90-108, Marketing Science Institute, Cambridge, MA cf Ryder
Rodney D, Brands, Advertisements and Advertising(LexisNexis Butterworths, New
Delhi) 2003, p.326
[12]Ryder
Rodney D, Brands, Advertisements and Advertising(LexisNexis Butterworths, New
Delhi) 2003, p.326
[15]Suzuki
motor Corpn v. Customer Union of the United States Inc. 292 F 1192(9th
Cir Edn)
[16]The
states with product disparagement statutes in the US are: Alabama, Arizona,
Colarado, Misissipi, Florida, Georgia, Idaho, Louisiana, North Dakato, Ohio,
Oklahoma, South Dakato and Texas.
[17]Texas
Beef Group v. Winfrey 11 F Supp 2d 858(ND Tex 1998); Agricultural General Co v.
Ohio Public Interest Research Group No 97 CVC07-7367
[18] Comparative
Advertising and Product Disparagement vis – a vis Trademark Law, JIPR Vol 11(6)
pp. 409-414
[19]The
proposition that ‘trade rivalries and economic battles should remain confined
to market places’ was proposed in Erven Warnink BV and Anr v J Townend &
Sons(Hull) limited and Anr 1980 RPC 31; also see White v Mellin 1895 AC 154
where it was observed “… The Court would then be bound to inquire, in an action
bought, whether this ointment or this pill better cured the disease which it
was alleged to cure- whether a particular article of food was in this respect or
that better than another. Indeed, the Courts of law would be turned into
machinery for advertising rival productions by obtaining a judicial
determination which of the two was better.” However, this proposition was
rejected in Pepsi Co Inc and Ors v Hindustan Coca Cola Ltd and Anr 2003(27) PTC
305.
[20]Dabur
India Ltd v Colgate Palmolive India Ltd IA No. 5445/2004 in CS(OS) No. 914/2004
decided on 9th September 2004 (Delhi High Court) wherein the Court found that,
although the advertisement of the defendant made a reference to the class of
goods only, namely, ‘red tooth powder’, and did not specially referred to the
plaintiff’s product, still the plaintiff would be entitled to get an injunction
against the defendant, as the plaintiff held 85% of the share of the market, in
that product.
[21] (1934) 51 RPC 110
wherein it was held that use of another’s trademark in comparative advertising
does not amount to infringement, Cf Pepsi Co. Inc and Anr v Hindustan Coca Cola
and Ors 2003(27) PTC 305.
[22] David
Kitchen, Kerly’s Law on Trademarks and Trade Names, pg 13-72
[23] Bismag
v. Amblins (1940) 2 All ER 608
[24]
Yeast-Vite (1931) 51 RPC 110
[25]Duracell
Intl Ltd v. Ever Ready Cell Ltd (1998) FSR 87
[44] As laid down in
Barclays Bank Plc v RBS Advanta[1996] RPC 307; and in the subsequent case of
Vodafone Group v Orange Personal Communication Services Ltd[1997] EMLR 84; and
as summarized by Michael Crystal(sitting as deputy judge) in British
Telecommunication Plc v AT&T Communications(UK)[2001] ETMR 235. In these
cases the issue dealt with Section 10(6) if the Trademarks Act 1994 of UK.
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