Consider a case where a descriptive trademark like ‘ALL WOOL’ has been permitted for a clothing brand. To an average consumer, this would connote that the products sold by the brand contain 100% wool. Now, if such clothes contain only 20% wool, this would cause the consumers to be deceived. The Trade Marks Office, allowing the use of a term like “All wool” as a trademark, might not always carefully review the technical accuracy of the message.

These are some of the challenges faced in the protection of consumers from misleading representations. Advertisements are undoubtedly the most powerful tool that impacts consumer behaviour – they must therefore be responsible!

The Code of Self-Regulation issued by the Advertising Standards Council of India (“ASCI Code”) requires that advertisements should be truthful and honest. The Consumer Protection Act, 2019 (“Consumer Protection Act”) similarly requires advertisements not to be misleading.

Entities often register descriptive or laudatory words, slogans, etc. as trademarks. Some of these trademarks are incorrect and/ or misleading as they represent unsubstantiated characteristics, nature, quality, or quantity of the product. When objected to by ASCI, entities rely upon their trademark registrations as a defence.

In this light, questions arise about whether descriptive/ laudatory marks can be registered as trademarks, and whether the prohibition under the ASCI Code and the Consumer Protection Act not to make false or dishonest claims in advertising applies to registered trademarks.