Advertisement Is Facet Of Commercial Speech Protected By Article 19(1)(A) Of Constitution, Holds Delhi HC [Read Judgment]

“In fact, the protection given to an advertisement under Article 19(1)(a) of the Constitution is a necessary concomitant of the right of the public to receive the information in the advertisement.”

The Delhi High Court has held that advertisement is a facet of commercial speech which is protected by Article 19(1)(a) of the Constitution of India and the same can be restricted only in accordance with law enacted under Article 19(2) of the Constitution.

Justice Manmohan was considering a suit filed by Horlicks Ltd for damages and permanent injunction restraining infringement, disparagement and unfair trade practices against HEINZ India Private Limited (Complan). Senior Advocate Chander M. Lall represented the former and Senior Advocate Amit Sibal appeared for the latter.

The advertisement by Complan had compared one cup of COMPLAN with two cups of HORLICKS and claimed that one cup of COMPLAN has the same amount of protein as two cups of HORLICKS.

The court held that the COMPLAN advertisement is not misleading and there is no denigration or disparagement of Horlicks. The court also held that the primary objective of Sections 29(8) and 30(1) of the Trade Marks Act, 1999, is to allow comparative advertising as long as the use of a competitor's mark is honest and that the failure to point out a competitor's advantages is not necessarily dishonest.

That though in comparative advertising a certain amount of disparagement is implicit, yet the same is legal and permissible so long as it does not mislead, the bench added.

In this context, the court also opined that that advertisement is a facet of commercial speech which is protected by Article 19(1)(a) of the Constitution. “The same can be restricted only in accordance with law enacted under Article 19(2) of the Constitution. In a democratic country, free flow of commercial information is indispensable and the public has a right to receive the commercial speech. In fact, the protection given to an advertisement under Article 19(1)(a) of the Constitution is a necessary concomitant of the right of the public to receive the information in the advertisement,” the court said.

The court also rejected the submission on behalf of the defendant that the judgment of the apex court in Tata Press, which equated commercial advertisement to free speech and held that a corporate entity is entitled to protection under Article 19(1)(a) of the Constitution, is per incuriam. The court said it is not open to a high court to hold that the Supreme Court judgment is per incuriam.