Comparative advertising can amount to disparagement and trade mark infringement when it uses a deceptively similar trade dress.

Comparative advertising becomes actionable disparagement and trade mark infringement when it uses a rival's distinctive get-up, colour scheme or trade dress to convey a denigrating or misleading message to the average consumer. The impugned television commercial was found to resemble a well-known pain-relief ointment's pack, to describe the advertiser's product as the "true pain reliever," and to compare it with a non-existent product, which the Court treated as dishonest commercial practice. By adopting a deceptively similar visual device, the advertiser was held to take unfair advantage of the rival's reputation and risk detriment to its mark, justifying injunctive relief.

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Issues: Whether the impugned television commercial constituted disparagement of the appellant's product and infringed the appellant's trade mark by using a similar colour scheme, trade dress and a misleading comparative message.

Analysis: The appellant's product was a well-known pain-relief ointment marketed with a distinctive trade dress and colour scheme. The commercial depicted a pack closely resembling that get-up and conveyed the message that the respondent's product was the "true pain reliever", which the Court treated as a denigrating comparison rather than a permissible neutral comparison. The Court further held that comparing the respondent's product with a non-existent product was not an honest commercial practice. By adopting a similar violet pack, the respondent was seen as taking unfair advantage of the appellant's distinctive get-up and as risking detriment to the appellant's mark and reputation within the meaning of trade mark infringement by advertising.

Conclusion: The commercial was held to be objectionable and to amount to disparagement and trade mark infringement, warranting injunctive relief in favour of the appellant.

Final Conclusion: The appellate court interfered with the refusal of interim relief, protected the appellant against the impugned advertisement, and modified the order under challenge by restraining further use of the offending depiction until the pack colour was changed.

Ratio Decidendi: Comparative advertising crosses the line into actionable disparagement and trade mark infringement where, assessed from the viewpoint of the average consumer, it uses a rival's distinctive get-up or a deceptively similar visual device to convey a denigrating message and to take unfair advantage of the rival mark's reputation.

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