Abstract
In this new era, where the digital world offers many new opportunities, influencers on social media have come to light in influencing consumer behavior and brand visibility. However, as we know with power comes great responsibility — similarly such marketing tool comes with a lot of legal responsibilities and repercussions, particularly relating to trademark law and regulatory compliance.
In this article we will discuss how trademark law and an influencer marketing on social media are overlapping with each other, focusing on some complexities such as lack of awareness among influencers, transparency issues, jurisdictional complexities, and the impact on small businesses.
Proper use of trademarks is suggested in this article and following regulatory frameworks diligently such as Federal Trade Commission (FTC) in the United States of America and Central Consumer Protection Authority (CCPA) in India. Social media has transformed from a mere entertainment platform to a significant income source, with influencers at the centre of this economic shift.
Intellectual Property (IP) laws, particularly trademark laws, play a crucial role in maintaining the integrity of these online identities and helping influencers protect their brands. A trademark, as defined under India’s Trademark Act of 1999, distinguishes the goods or services of one entity from others and safeguards brand identity — an asset in today’s competitive social media landscape.
Introduction
Now social media is not just an entertainment platform but a large income source and many people have their careers based on it. After Covid-19 there has been a steep rise in influencer market as more people have gotten engaged with Instagram’s new feature, Insta Reels, that has been inspired by TikTok after it got banned in India. Intellectual property laws, especially trademark laws, are really important in maintaining security of these influencers in a legal realm and help in protecting their brands. A trademark, defined under the India’s Trademark Act, 1999 is “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others”.
Intersection of Trademark and Social Media Influencers
There is a nexus between trademark and social media influencers. For influencers, building a unique brand identity is essential. With millions competing for followers, establishing and protecting this identity is important. Since there are now millions of people in this rat race, making a distinct identity is challenging. Trademark law offers influencer protection against imitation, allowing them to trademark elements such as usernames, channel names, logos and taglines, provided they are used commercially. There are high chances that people might copy established influencers’ brands or ideas to gain followers. To safeguard influencers from such imitation, trademark law provides essential protection.
Influencers can apply for registration of trademark for various things such as their username, series name, channel name on YouTube, logos or any tagline they use. But these can only be trademarked if it is being used for purpose of advertisement or entertainment. This will help them to protect their originality. When registration of these marks is completed, it will be enforceable like any other trademark. This development will ultimately benefit creators by enhancing their online discoverability, making it easier for audiences to find and connect with them.
There are a few Indian celebrities that have trademarked their name to protect their personal brands, such as Sanjeev Kapoor trademarked ‘SANJEEV KAPOOR KHAZANA’ and Sachin Tendulkar trademarked his initial ‘SRT.’ 1
The case of D.M. Entertainment v. Baby Gift2 house emphasized the importance of trademark registration in the digital age. Daler Mehndi, a well-known singer, sought to prevent unauthorized use of his name through an unsanctioned use of his name through an unsanctioned dalermehndi.net. The Delhi High Court ruled in favour of the renowned singer, recognising his intellectual property rights and holding defendant liable for unauthorised use, protecting his brand from commercial exploitation.
Creators can also trademark their own brand or merchandise they have. Nowadays, almost all influencers are launching their own brand and thus need protection for it. Trademark will not only provide brand security but will give them unique identity. It is of utmost importance to protect your brand and social media identity so that people will follow the creator for their originality and that will ultimately help them to grow and earn. Utilization of trademark by social media influencers also exposes them to potential legal vulnerabilities with respect to trademark. There are chances that unintentionally or intentionally, they might infringe trademark.
Indian Legal Framework for Influencer Marketing
“In the year, the Department of Consumer Affairs under the Ministry of Consumer Affairs, Food and Public Distribution has published the endorsement guidelines6for celebrities and social media influencers. The social media influencer market in India, valued at ₹1275 crore in the past year, is expected to be worth ₹2800 crore by 2025. With over 100,000 influencers exerting considerable influence on consumer decision-making, the regulatory checks seem justified. Endorsers are required to be honest about any material connection with the brands, whether monetary, free samples, publicity, or other incentives.
Disclosures should be made conspicuously and use terms such as “advertisement”, “sponsored”, or “paid promotion“. Other product endorsements are fine, as long as the influencer has actually used or experienced them, therefore ensuring credibility. The penalties for violation range from ₹10 lakh for the first offense to ₹50 lakh for repeat offenders. A repeat offender shall be banned or imprisoned for six months to two years. The violation of these guidelines shall be violated under the authority of the CCPA, under the Consumer Protection Act, 2019, in order to prevent misleading advertisements and protect the interest of consumers.
The Advertising Standards Council of India (ASCI) recently brought in guidelines for effective influencer marketing. Transparency should be maintained without any confusion. For example, paid collaborations through influencers should clearly be disclosed using hashtags like #Ad or #Sponsored. Failure may invite legal action under the Consumer Protection Act or reputational damage in the form of public embarrassment. The complaints are reviewed by the CCC of ASCI, and if found valid, the influencer or brand needs to change or withdraw the misleading advertisement.
The Central Consumer Protection Authority CCPA has recently brought forth the Guidelines for Prevention of Misleading Advertisements and Endorsements, 2022 8 in a move to completely dispose of deceitful advertisement and safeguard the interests of the consumers. These guidelines prevent the advertisements that mislead consumers through over-exaggerated claims, false promises, or distortion of fact, thereby ensuring their rights of information, choice, and safety. For the first time, the government has defined clear parameters for valid advertisements, covering bait marketing, surrogate promotions, and disclaimers.
Special provisions restrict misleading advertisements targeting children, prohibiting endorsements by celebrities in industries requiring health warnings. The guidelines make sure that all the disclaimers are of the same language and font used in the original advertisement so as not to conceal essential information. Before endorsing a product or service, advertisers, manufacturers, and influencers must first conduct due diligence. Violations invite strict penalties – fines up to ₹10 lakh, increasing to ₹50 lakh for repeat offenses. CCPA also retains the power to ban endorsers from promoting products for up to three years in case of repeated non-compliance.”
In addition to the above, the Advertising Standards Council of India (“ASCI”), a self-regulatory entity, introduced “Guidelines for Influencer Advertising in Digital Media” (“ASCI Guidelines”) on August 17, 2023. Interestingly, the terms like “influencer”, “virtual influencer” and “digital media” were defined for the first time in India, by way of the ASCI Guidelines. Though not legally binding, ASCI Guidelines give a much-needed clarity on the obligations of the social media influencers to disclose any “material connection” with the promoted brand and provide instructions on how disclosures should appear in different content formats such as images, videos, live streams, and audio posts across different platforms.[4]
Furthermore, these obligations are not uniform across platforms but are tailored to the format and nature of the content. If the advertisement is only a picture or video post without accompanying text (such as Instagram stories or Snapchat), the disclosure label needs to be superimposed over the picture/video, and the average consumer should be able to see it clearly. As regards duration of such advertisements, the ASCI Guidelines clarify as under:
- For videos that last 15 seconds or less – The disclosure label must stay for a minimum of 3 seconds.
- For videos which are 2 minutes or longer – The disclosure label must stay for the entire duration of the section in which the promoted brand or its features, benefits etc., are mentioned.
- For longer videos – The disclosure must be for longer durations.
- For live streams – The disclosure label should be announced at the beginning and the end of the broadcast. If the post continues to be visible after the live stream is over, appropriate disclosure must be added to the text/caption.
- For audio media – The disclosure must be clearly announced at the beginning and at the end of the audio, and before and after every break that is taken in between.
Protective Steps for Influencers and Content Creators
The social media influencers having their original content need to protect their original content, which is freely and easily accessible in the world governed by the internet. There are impersonators who use these contents without permission and use it for their own benefits. Thereby, it is of utmost importance that influencers must register their intellectual property so that they can enforce it against third party risks. The influencers in the social media sites need to register their contents for copyright as soon as it is created including their channel’s name or also can be protected by virtue of a trademark as soon as they begin using them on social media in terms of their content. There are notable influencers who have taken steps in this regard to trademark their name.
Donald Trump, Taylor Swift, Rihanna, Victoria Beckham, Justin Bieber, Katy Perry, Kylie Jenner and Huda Kattan are some of the popular names to cite a few in this regard. For instance, the famous Kylie Jenner was opposed by Kylie Minogue who was a popular Australian singer already having her trademark registered name when the former tried to register her name ‘KYLIE’ as a trademark in the United States. This is just a glaring example which exhibits the importance of registration regarding the trademark in such cases. In a similar context, Huda Kattan has a registered trademark of her name for ‘Huda Beauty’ in the United Kingdom and European Union. It is necessary considering the fact that there are impersonators who use these names with a mala fide intention for their own profit which is many a times unknown.
This is a scenario as far as trademark is concerned. In cases related to copyright, it is necessary and advisable on the part of the influencers to have copyright registrations in place for the unique content that an influencer publishes. This is necessary because in many countries, in relation to copyright protection under the Intellectual Property Regime, the damages in relation to infringement of copyright can only be claimed if there is copyright registration for the same. And the damages that can be claimed are only applicable from the date of the registration. But the problem arises when by the time the registration occurs, the major financial harm to the infringed work and its owner has likely been done. However, if registration with regard to copyright is made, the compensation with regard to the same can be claimed.
Marico v. Bearded Chokra
This case involved a YouTuber’s critical review of a coconut oil brand. The ruling affirmed the importance of factual commentary and distinguished between legitimate critique and potentially misleading advertising, clarifying the boundaries between free speech and deceptive marketing practices.
Supreme Court on Deceptive Ads
A Supreme Court judgment highlighted that both influencers and celebrities are equally liable for making false or misleading claims in their endorsements.
M/s. Frito-Lay India v. Narsingha
(Though not explicitly detailed in the snippets, it is a case often cited for its implications on false advertising and influencer liability in India). This implies that influencers can face legal repercussions for making deceptive statements about product quality, even if not directly trademark infringement.
Trademark Issues Commonly Faced By Social Media Influencers
The social media influencers are at risk of unintendedly trademark infringement. Influencers usually advertise and promote brands, creating an impact on the minds of the audience. Advertising any brand or product stating facts that are fallacious, can result into trademark disparagement and will amount to infringement as it is harming the reputation of the brand.
In the case of Marico Limited vs Abhijeet Bhansali, YouTuber Abhijeet Bhansali’s critical review of Marico’s product “Parachute” resulted in legal action, as Marico argued that it harmed their brand image. This case underscores the potential for reputational damage and legal liabilities influencers face when using brand trademarks without proper authorization.
To prevent such issues, influencers must obtain explicit consent before featuring or reviewing branded content. Unauthorized endorsements, misrepresentation, and use of incorrect logos, product names, or branding elements can easily lead to legal challenges. For brands, monitoring influencer activities is crucial to protecting trademark integrity and minimizing risks of brand dilution. Misuse confuses consumers, damaging reputation and trust. Social media’s rapid content spread amplifies these risks, potentially causing swift and widespread damage. Companies must vigilantly monitor influencer activities to protect trademarks and maintain brand integrity. Failure to act can erode brand equity, market share, and financial value. This infringement could be avoided if proper care is taken and rules are followed.
Consideration For Influencers To Avoid Trademark Infringement
As the engagement of the influencers is increasing with brands, it is important to avoid unintended trademark infringement. To avoid infringement, influencers should adhere to several best practices within legal boundaries while maintaining credibility with their audience:
- Seek Permission: Prior to featuring branded products, logos or any trademarked content, influencers should secure explicit permission from the brand. Obtaining written consent minimizes the risk of unauthorized use, allowing influencers to showcase products in alignment with brand expectations. Collaborating directly with the brand representatives can also help define the terms of usage and avoid legal disputes.
- Avoid Misrepresentation: To prevent misleading the audience, influencers should avoid implying any endorsement or partnership with a brand unless specifically authorized. Ensure content does not imply brand endorsement unless explicitly authorized. Misrepresentation can occur when influencers present a product in a way that suggests they are officially affiliated with or sponsored by the brand. Clear boundaries between personal opinions and official sponsorship protect both influencers and brands from reputational harm.
- Use Clear Disclosures: Transparency is essential to build trust in influencer marketing. Disclosures such as ‘paid partnership,’ ‘ad’, or ‘sponsored’ are essential for signalling that a post is financially incentivized. This is required not only by advertisement regulations in many countries but is also in line with the trademark laws.
- Distinguish Original Content: Influencers should be cautious when creating visuals, logos, or designs for their own brand to avoid close resemblance with any other established brand. Developing unique, original content not only sets influencers apart but also helps them build a distinctive brand identity free from legal risk.
- Avoid Product Disparagement: While reviewing or discussing products, influencers should take care to be factual and avoid exaggerated negative statements that could harm a brand’s reputation. A negative review that crosses into defamatory territory can lead to trademark disparagement claims. Remaining professional, constructive, and balanced in product critiques is key to preventing such conflicts while ensuring the influencer’s content remains credible and objective.
By adhering to the abovementioned guidelines, influencers not only protect themselves from legal consequences but also enhance their professional reputation. Demonstrating respect for brand trademarks and using transparent, original content strengthens the relationship between influencers and brands, contributing to sustainable growth and trust in the influencer’s audience.
Influencers As Brand Ambassadors
In the past, brands relied heavily on traditional advertising through TV, print, and radio. While these forms of advertising are still relevant, influencers have revolutionized marketing by engaging with a more personalized, direct form of promotion. By collaborating with influencers, brands can tap into established trust and loyalty that these influencers have built with their followers.
An influencer’s personal brand is often associated with specific products, fashion trends, and lifestyle choices, all of which are showcased through their social media platforms. This personal connection allows influencers to give brands a sense of authenticity that traditional advertising may lack.
However, this also means that influencers and brands must tread carefully when it comes to intellectual property, as their endorsements could unintentionally lead to the infringement of trademarks, copyrights, or other intellectual property rights.
Expanding Into Virtual Goods And Experiences
Social media influencers are increasingly venturing into virtual spaces, promoting not just physical products, but digital items and virtual experiences. For example, influencers in gaming spaces may showcase in-game purchases like custom outfits for avatars or exclusive virtual items. Similarly, in the metaverse, influencers could promote virtual real estate, digital clothing, or NFTs (non-fungible tokens), all of which involve a different kind of trademark law consideration than traditional products.
With this shift to virtual goods comes the need for both influencers and brands to understand how trademarks function in these digital environments. As more influencers become involved in virtual product promotion, the legal complexities surrounding trademark use in virtual spaces will grow.
Trademark Law And Influencers In Virtual Spaces: The Basics
Trademark law, at its core, is designed to protect brand identity and prevent consumer confusion. This becomes increasingly important when influencers promote or create virtual goods and services, as these digital items must be protected from unauthorized use. When trademarks are involved, influencers and brands need to understand the rules around the use of logos, brand names, and other identifiers in virtual environments to avoid conflicts.
How Trademarks Protect Brands in the Digital World
A trademark is a legally recognized symbol, word, phrase, or other distinctive mark that identifies the source of a product or service. The purpose of trademark law is to prevent consumers from being misled about the origin or quality of the goods they are purchasing. This protection extends to virtual goods as well, such as digital clothing, virtual real estate, and even the branding associated with virtual events or experiences.
Strategies for Protecting Trademarks on Social Media
In the social media environment, trademark owners can adopt proactive techniques through which they will be able to protect their intellectual property rights.
Trademark Registration and Portfolio Maintenance
- Ensure regional and class-focused registrations of trademark applications that pertain to your company.
- Register variations including slogan and product name and hashtag registrations which help in flagging down misuse.
Social Media Monitoring
- Adopt monitoring tools that will help in tracking how unauthorized people are using your trademark in their usernames, hashtags, and posts.
- Report such infringements immediately using platform reporting mechanisms.
Influencer Contracts with Bold Clauses
Essentially, these are clauses dealing with trademark use in influencer contracts. Such clauses would also comprise penalties for acts related to trademark abuse or misappropriation.
Training Workers and Associates
Internal and external stakeholders have to continuously train on appropriate trademark use so that they might get closer to averting inadvertent shedding or gravitation infringement.
Creating Connections as Well as Relationships with Audience
Respond to denigration of infringement dignifiedly whenever possible, especially with regard to fan accounts or harmless user-generated content. Besides that, strike a balance between enforcement and goodwill with consumers and followers.
Case Studies: Lessons Learned from Trademark Disputes on Social Media
“Rise and Shine” by Kylie Jenner
This has been Kylie’s most controversial trademark attempt. Kylie wanted to trademark the words, ‘Rise and Shine’, but when these words became contagious across the social media scene, controversy struck as she was trying to monopolize a common man’s phrase. This case draws attention to public perception rather than trademark strategy, especially in the social media age.
Coca-Cola vs. Dubious Content
There are three serious issues that Coca-Cola suffered due to fake advertising on Instagram and Facebook: brand impersonation by fake accounts misleading consumers; false claims and scams, such as promoting false offers; and damaged consumer trust as users often get confused about what is real and what is not. Nevertheless, Coca-Cola has managed to reduce exposure to these contents through AI-aided monitoring tools and direct collaboration with platform administrations.
TikTok Boosts Brands
On TikTok, a variety of minor brands have gone viral through trends. Such buzz does sometimes lead to trademark violation of these brands by copycat products. Some brands have managed to turn virality into growth directly by interacting with the new fan base while trademarking more widely—Ocean Spray being one example.
The Future of Trademarks in Social Media and Influencer Marketing
Trademark issues evolve along with trends that follow social media development. Some trends to watch out for are as follows:
AI-Created Content and Trademarks
It complicates ownership and infringement issues of trademark position when artificial intelligence tools create logos, slogans, and designs. These issues will shape how future digital trademarks evolve from the perspective of courts and policy decision-makers.
Increases in Platform Policy Examples
Increasingly, social media becomes another sector in which businesses must actively retool policies dealing with trademark infringement and counterfeit goods. This requires them to adjust strategies accordingly.
Digital-for-Trademark Blockchain Networking
Blockchain technology could offer new applications in tracking and verifying trademarks. One possibility is the use of NFTs, empowering brands to validate ownership rights and combat counterfeiting.
Conclusion
In the future, trademarks will remain indispensable in the digital economy, functioning as both defensive tools and weapons. The social era of trademarks and influencer marketing will require brands to be agile, vigilant, and creative to protect and capitalize on trademark assets. The ability to understand the unique challenges of this landscape while implementing solid strategies will help businesses defend their trademarks while seizing opportunities on thriving digital platforms. This future of trademarks increasingly depends on creativity, agency, and trust itself in a more interconnected world, as the line between the virtual and the actual continues to blur.
Suggestion
Emerging Trends And Key Takeaways
The growing influencer-brand relationship has heightened regulatory scrutiny and the rise of AI tools to examine trademarks and their use more effectively across social media in branding monitoring presents both challenges and opportunities. Tools now enable brands to scan social media for unauthorised use, making it easier to protect trademark. Additionally, the rise of virtual and micro-influencers has added complexity to trademark management. Given the variations in trademark law across regions, brands and influencers benefit from formalized agreements that clearly define usage rights, responsibilities and legal protections.
In a nutshell, trademark protection in influencer marketing will safeguard both a brand and influencer integrity. This highly dynamic environment of social media compels brands and influencers to adapt continually, stay informed of legal guidelines, and take proactive measures to maintain trust and originality in their branding efforts.
The Future Of Protecting Digital Content On Social Media
Social media has become an integral part of our lives, and it is an excellent platform to share a person’s thoughts, photos and videos with the world. However, with this convenience comes a significant risk that a person’s digital content can be easily copied or stolen. In this context the government has also provided some rules which are necessary to be followed by the social media influencers to clearly state their brand affiliations in order to avoid penalties. Some of the rules provided by the government include publication of clear disclosures about brand associations so that there exists transparency and the consumers are also protected.
Social media influencers have monopolised the spotlight in recent years as few others have. They advise everyone on which brand to purchase, which eating place to visit and where to place our money. While it is true that one should act and spend their hard-earned money wisely, it is also true that these social media influencers have the potential to deceive people. It is essential that no one ever base their purchasing choices on the advice of social media influence.
In one of the landmark judgment Marico Limited v. Abhijeet Bhansali, the Bombay High Court noticed two main issues: The Court held that the defendant (a content creator on YouTube.com) cannot, under the garb of educating or bringing the true facts to the public, provide misleading information to disparage the plaintiff’s product. Any campaign to educate the members of the public by placing before them the true and correct facts may be welcomed.
Disparages, discredits, or belittles someone else’s product or influences the consumers not to buy the said product. Additionally, the unauthorised use of the plaintiff’s registered trademark by the defendant in a manner, which is detrimental to its distinctive character or reputation, cannot be in accordance with the honest practices in industrial or commercial matters. While this being the first case to come forward which discussed social media, however some questions are still left to be answered. But nonetheless, there will be a number of cases to come before the courts owing to the rise of social media influencers and the complexities in the near future.
Suggestions – A Way Forward
In this world of technology driven society, where everything is possible within a simple click and in a few seconds, with social media booming up like a volcano, the creators creating contents online, sometimes this being their only source of income, the need with regard to the protection of their contents becomes utmost necessary. However, the complexities with regard to these are many, with impersonators looming over the intent to make their own profits.
As the Intellectual Property Rights embraces and gives protection to the original creators having novel ideas, the social media creators should take necessary action to be protected under the regime. Keeping in view the problems with regard to the same, the authors would like to put some suggestions in this regard:
- It is always advisable on the part of the content creators to seek licenses or register their contents or domain names or even hashtags under trademark or copyright as applicable on their respective contents, because prior registration or having a license will refill the losses if suffered by the former in this context.
- Before registering their contents, it is advisable on the part of the creators, that due diligence and extreme caution should be present to see and verify that similar brand names or domain names do not collide.
- The social media influencers should carefully read the terms and conditions for the social media platform they are using on which they upload their respective contents and copyright it.
- Although the government has provided rules to protect content in social media, it is also necessary to provide stronger laws which will help to refill the loss if suffered and also provide the content creators with legal recourse if their contents are used without infringement.
- It is necessary on the part of the influencers to use legal services that are specialised in protecting Intellectual Property Rights which will help them to enforce their legal rights and seek compensation for any infringement.
Conclusion
Therefore, it can be concluded that with the rise of social media influencers and considering the number of users using these platforms, people are prone to copying, remaking old versions and claiming it to be their own. It does become necessary on the part of the original creators to register their works as they rightly deserve. They should be cautious and keep track of any infringement or violations within the ambit of Intellectual Property.
In this regard, the original work can be protected under copyright and unique brand identity through trademark. As creation of unique and distinctive work always requires lots of effort and time thus it should be always protected. It is necessary for creators and influencers to understand their legal rights and take steps to protect their Intellectual Property. However, this protection can be assured only with the application of laws, which the law lacks with regard to social media influencers. The Courts are not able to determine as to ‘what is ok’ and ‘what is not’ until and unless there exists proper laws with regard to the same.
