Comparative Advertising in India: What the Law Allows After PepsiCo and Reckitt Benckiser

Comparative advertising — naming or referencing a competitor's product or brand in advertising — is permitted in India under specific conditions. The conditions come from three sources: the Trade Marks Act, 1999 (particularly Section 29 read with Section 30), the Consumer Protection Act, and the Advertising Standards Council of India (ASCI) Code. Indian courts in PepsiCo v. Hindustan Coca-Cola (2003) and the long-running Reckitt Benckiser v. Hindustan Unilever matters have articulated the framework that distinguishes lawful comparative advertising from actionable trade-mark misuse and product disparagement.

This guide covers the statutory framework, the leading case law, and the operational rules that Indian advertisers, agencies and clients should follow before naming a competitor in any campaign.

The statutory framework

Section 29(8) of the Trade Marks Act, 1999 specifically addresses advertising that uses a registered trade mark. It deems such use to be infringement if the advertising:

• Takes unfair advantage of the trade mark
• Is contrary to honest practices in industrial or commercial matters
• Is detrimental to the distinctive character of the trade mark
• Is against the reputation of the trade mark

Section 30(1) provides a counterpart safe harbour: use of a registered trade mark in accordance with honest practices in industrial or commercial matters, and which does not take unfair advantage of or harm the distinctive character or repute of the mark, is permitted. The two sections together draw the line — honest comparison is permitted, disparagement or unfair-advantage taking is not.

You can name them. You can compare. You cannot lie, and you cannot damage them dishonestly. The rest is fair game.

PepsiCo v. Hindustan Coca-Cola

The 2003 Delhi High Court matter — Pepsi Co. Inc. v. Hindustan Coca-Cola Ltd., 2003 (27) PTC 305 (Del) — involved comparative-advertising claims around cola taste tests. The Court held that:

• A trader is entitled to declare their goods to be the best in the world, even if the declaration is untrue, so long as it is mere puffery
• A trader cannot, however, say that the competitor's goods are bad — this constitutes disparagement
• The dividing line is between (i) saying my goods are better than X (permitted) and (ii) saying X's goods are bad or inferior (not permitted)
• The visual depiction matters as much as the words; suggestive imagery that puts a competitor's brand in a negative light triggers the disparagement test

The framework from PepsiCo remains the operational reference for Indian comparative-advertising analysis.

Reckitt Benckiser v. Hindustan Unilever

The Reckitt Benckiser v. Hindustan Unilever matters (Calcutta High Court, multiple proceedings between 2008 and 2014) involved comparative advertising between competing dishwashing and laundry-care brands. The decisions confirmed and developed the PepsiCo framework, particularly on the test for 'disparagement' and the use of side-by-side product comparisons in advertising.

Key principles applied:

• Reference to a competitor's mark for the purpose of objective and factually accurate comparison is permitted; subjective denigration is not
• Factual claims in comparative advertising must be substantiated — the advertiser carries the evidentiary burden when challenged
• Even truthful comparisons can become actionable if the overall presentation creates a deceptive impression
• Injunctive relief is the standard remedy where prima facie disparagement is shown

What 'honest practices' means

Indian courts have read 'honest practices' to require:

• Factual accuracy — claims must be true and substantiable
• Like-for-like comparison — comparing the competitor's flagship product to a premium offering, or comparing different grades, generally fails the honesty test
• Substantiable methodology — for performance claims, a published methodology with verifiable test parameters; for taste tests, a defensible protocol
• Non-misleading overall impression — even if individual statements are true, the cumulative impression must not deceive

The ASCI Code overlay

The ASCI Code on Self-Regulation contains a Chapter IV addressing comparative advertising. The Code requires comparative claims to:

• Specify the aspects on which the comparison is being made
• Be capable of substantiation
• Not unfairly denigrate, attack or discredit competitor products
• Not create confusion in the consumer's mind between the advertiser's product and the competitor's

ASCI complaints are processed through a Consumer Complaints Council. Adverse findings are not binding court orders but carry industry weight; the Code is also referenced by Indian courts in trade-mark and consumer-protection litigation, particularly under the Consumer Protection Act, 2019 which incorporates the ASCI Code in places.

The Consumer Protection Act, 2019 dimension

The Consumer Protection Act, 2019 introduced specific provisions on misleading advertisements, with the Central Consumer Protection Authority (CCPA) empowered to order takedowns, penalties and corrective advertising. Comparative advertising that crosses into deception is exposed under this statute, in addition to trade-mark and disparagement claims. Endorsement-based comparative advertising (celebrities or experts comparing products) is particularly scrutinised.

Remedies available

When a competitor brings a comparative-advertising action, the remedies available include:

• Interim injunction — courts grant ex-parte and ad-interim injunctions readily where prima facie disparagement is shown
• Permanent injunction — restraining further publication of the impugned advertisement and any variants
• Damages — for harm to the brand reputation; account of profits where applicable
• Corrective advertising — courts have ordered defendants to publish corrective notices in some cases, particularly where the original campaign was widespread
• ASCI orders — separate, faster, and frequently used by smaller competitors who cannot afford litigation

The takeaway

Indian law permits comparative advertising within defined limits. The framework from PepsiCo and Reckitt Benckiser, read with Sections 29(8) and 30(1) of the Trade Marks Act and the ASCI Code, gives advertisers a workable but disciplined space. Factual, substantiable, like-for-like comparisons that do not denigrate are permissible. Subjective denigration, unsubstantiated performance claims and misleading impressions are actionable. The pre-launch review by IP and advertising counsel is the standard practice for any campaign that references a competitor's product or brand. IPForte's IP litigation practice handles comparative-advertising matters on both the offensive and defensive sides.