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11. Before dilating upon the merits of the contentions raised by both the parties, this Court deems it proper to discuss the meaning and scope of disparagement vis-à-vis comparative advertisement in India. A. Comparative Advertisement, Puffery and Disparagement
12. Since time immemorial, advertisements have been a tool in the hands of manufacturers and service providers, used as a medium to take their goods and services to the masses and making themselves known. It is also a source of information in the form of public notice. The methods and manners of advertising are ever-evolving, in tandem with technological advancement and increasing industrial competition. From hand-written scribbles on paper scrolls, advertisements have changed forms, morphing into Artificial-Intelligence (AI) generated animations on electronic screens.

50. The entire basis of the claim being made by the respondent is that the In vivo and In vitro test conducted by independent laboratories have found that concentration of triclosan in dental plaque, after four hours of brushing, is higher where Pepsodent GSP has been used in comparison with cases where Colgate ST is used. These findings are also disputed. However, notwithstanding the dispute, the question which arises is, does this parameter by itself lead to an inference that Pepsodent GSP is more efficient in combating tooth decay and cavities in comparison with Colgate ST. The co-relation between higher concentration of Triclosan after four hours of usage of Pepsodent GSP as claimed by the respondent and cavity prevention qualities of the two compared products is vital to determine the truthfulness of the impugned TVC. In the event, it is found that this co-relation is illusory and a higher concentration of Triclosan in dental plaque does not have a proportionate impact in combating tooth decay or germ build up or that Colgate ST has certain other ingredients in addition to Triclosan which also prevent tooth decay then clearly the message sent out by the impugned TVC would be untruthful and thus impermissible. To illustrate this point, let us take a hypothetical case of comparison between two motor vehicle manufacturers. While one manufacturer may use an engine of a higher cubic capacity, the other manufacturer, while using an engine of a lower capacity may tune it differently and employ a better fuel injection system which, in fact, leads to delivering more power to the wheels in comparison to the vehicle employing the larger capacity engine. While it would be appropriate for the car manufacturer using a larger engine to put out a comparative advertisement indicating that the engine used in vehicles manufactured by him were of a higher capacity than the engine used by other car manufacturer, it would be completely misleading if the former car manufacturer would on the basis of a higher capacity engine proclaim that the vehicles manufactured by him were more powerful and faster than that of his competitor. The essential message conveyed by the advertisement must be truthful and given the fact that in a case of comparative advertisement where the reputation of the products/services of another dealer/person is at stake, the truthfulness of the essential message should be strictly tested.

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24. In a comparative advertisement, it is open for an advertiser to embellish the qualities of its products and its claims but it is not open for him to claim that the goods of his competitors are bad, undesirable or inferior. As an illustration, in a comparative advertisement, it is open for an advertiser to say his goods are of a good quality but it is not open for an advertiser to send a message that the quality of the goods of his competitor is bad. As observed by the Chancery Division in De Beers Abrasive Products Ltd. case9, it is open for a person to claim that he is the best seller in the world or a best seller in the street but it is not open for him to denigrate the services of another. Thus, it is not open for an advertiser to say "my goods are better than X's, because X's are absolutely rubbish".

65. This, it was held that, "in a comparative advertisement, it is open for an advisor to embellish the qualities of its products and its claim, but it is not open for him to claim that the goods of his competitors are bad, undesirable or inferior". Comparative advertisement would always involve a statement that the advertised goods are better, in some aspects, than the goods of the competitors. However, there is a line which an advertiser cannot cross, on the other side of which lie disparagement and defamation of the goods of the competitor.