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Complex Landscape of Intellectual Property in Influencer Marketing

Complex Landscape of Intellectual Property in Influencer Marketing
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Abstract:

The rise of social media influencers has transformed advertising, integrating platforms like Instagram and TikTok into marketing strategies. This evolution necessitates a keen understanding of intellectual property (IP) laws, as unauthorised use of trademarks and copyrighted content can lead to legal complications. Notable cases highlight the importance of accuracy and compliance in influencer content. Both influencers and brands must navigate IP laws responsibly to protect their reputations and avoid infringement issues.

Main Body:

The emergence of social media influencers has significantly altered the advertising landscape, with platforms like Instagram, YouTube, Twitter, and TikTok playing a central role in marketing strategies. These influencers, with their large online followings, have substantial influence over public opinion and consumer behaviour. By featuring products and brands in their content, influencers earn money through advertisements and endorsements. 

However, this lucrative opportunity comes with the responsibility of understanding and adhering to complex Intellectual Property (IP) laws, particularly concerning trademarks and copyright. Featuring a brand's name, trademark, logo, or product without proper authorisation can lead to infringement issues. This type of content falls under branded content or protected copyrighted content and requires explicit permission from the owner. This requirement is based on IP laws designed to prevent consumer confusion and safeguard owner right. Influencers must ensure that their use of protected IPs does not mislead consumers or harm the brand's reputation.

Trademark disparagement is another significant concern, arising when false or misleading statements about a brand or its products harm its reputation. While freedom of speech is fundamental, it does not extend to spreading false information that can damage a brand. Influencers must thoroughly research and ensure the accuracy of their claims to avoid legal repercussions. Brands, on the other hand, should educate influencers on legal regulations and monitor their content for compliance. The impact of social media on public perception and consumer choices is considerable. 

A notable case involving Marico Limited and Abhijeet Bhansali underscores the importance of accuracy in influencer content. Marico, the owner of the 'Parachute' coconut oil brand, sued Bhansali, who criticised the product in a YouTube video. The court ruled that Bhansali's statements were reckless and misleading, ordering the removal of the video. This case emphasises the need for influencers to verify their claims and avoid providing deceptive information that can harm a brand's reputation. 

Similarly, the Dabur vs. Dhruv Rathee case further demonstrates the fine line between criticism and disparagement. Rathee, a popular influencer, criticised Dabur's packaged fruit juices in a video, which led to a lawsuit by Dabur. The Calcutta High Court found that the video unfairly targeted Dabur’s product, ruling that Rathee's use of Dabur’s trademark and packaging infringed on their IP rights. The court balanced the consumer's right to information with the manufacturer's right to protect its reputation, highlighting the limits of free speech in commercial contexts. The increasing use of digital and social media has shifted consumer behaviour towards online shopping and influencer reviews, making regulation and accountability in influencer advertising more critical. 

The Advertising Standards Council of India (ASCI) has established Guidelines for Influencer Advertising in Digital Media. These guidelines mandate disclosure labels like "Ad" or "Sponsored" and require influencers to disclose any material connections that could affect content credibility. The Department of Consumer Affairs (DoCA) has also released guidelines for disclosure requirements and compliance in the health sector. Non-compliance can lead to penalties, including fines and bans on endorsements. 

Internationally, the Dior vs. SwedishandStylish case highlights the complexities of IP rights in influencer marketing. Dior was sued by the influencer for using her images without permission in their lookbooks. This case underscores the necessity for brands to obtain proper licenses and permissions when using content created by influencers. The phenomenon of "dupe influencers," who promote counterfeit goods, poses additional challenges. These influencers risk promoting illegal activities and misleading consumers.

Amazon has filed a lawsuit against social media influencers, accusing them of promoting the sale of counterfeit luxury goods on their online platforms. The influencers are accused of using a 'hidden links' scheme to direct their followers to counterfeit products on Amazon while concealing the trademark infringement. Amazon also reported that it had removed over six million counterfeit products from its supply chain in its annual update on brand protection activities. Additionally, it had blocked 800,000 attempts to create new selling accounts. Amazon's Counterfeit Crimes Unit (CCU) had either sued or referred for investigation over 1,300 criminals in the US, UK, EU, and China. 

The case of Matilda Djerf and her brand, Djerf Avenue, further complicates the landscape. Djerf faced backlash for requesting the removal of TikTok videos featuring knock-offs of her designs. This incident highlights the difficulties of protecting IP in the fast-paced world of social media and raises ethical questions about the promotion of replicas versus genuine products. Legal disputes in digital advertising, such as the lawsuit filed by Sony Music Entertainment against OFRA Cosmetics for using unlicensed songs in social media posts, emphasise the importance of obtaining proper licenses. Both brands and influencers must be diligent in ensuring that all third-party content used in advertisements complies with IP laws to avoid liability.

The relationship between social media influencers and intellectual property (IP) rights is intricate and loaded with potential pitfalls. Influencers must be diligent in respecting trademarks and ensuring the accuracy of their content to avoid legal issues. Brands need to educate and monitor their influencers to ensure compliance with legal standards. As the influence of social media continues to grow, responsibly navigating these legal landscapes will become increasingly important.

IP Round Up

Image Source: Economic Times
The National Council of Educational Research and Training (NCERT) has issued a warning to certain publishers for violating copyright laws by printing and selling NCERT school textbooks without obtaining permission. NCERT, responsible for creating and distributing educational materials for all levels of school education, has emphasised that using their content without permission will lead to legal action under the Copyright Act of 1957. The public is advised to avoid such pirated materials and report any instances to NCERT. Publishers wishing to use NCERT content are instructed to submit a proposal for approval. NCERT has released a public notice to raise awareness about copyright infringement and urges all stakeholders to respect their copyrights.
Image Source: India Times
2. Tesla Power India assured the Delhi High Court that it has instructed vendors and partners to remove Tesla marks from electric scooters after objections from Tesla Inc. The company stated it has no plans to enter the electric vehicle market beyond its current activities. The court requested Tesla Power to provide an affidavit on electric scooter sales and current stock and to ensure compliance. The next hearing is on July 4. Tesla Inc alleged that Tesla Power is still in violation of its commitment by not contacting its dealers as directed by the court. Tesla Power clarified it is not manufacturing EV batteries but selling lead acid batteries used in traditional vehicles and inverters. The advertisement featuring the Tesla trademark was related to another company, e-Ashwa, with whom Tesla Power has a strategic partnership.
Image Source: Bollywood Hungama
3. Bhuvan Bam, known for his popular character Titu Mama in the "BB Ki Vines" series, has recently obtained a trademark for the character. Titu Mama, known for his unique humour and style, has gained immense popularity and has become a cultural icon. Bhuvan expressed his gratitude for the love and support for Titu Mama and reflected on the character's incredible journey. The decision to trademark Titu Mama reflects the character's impact and the need to protect creative content in the digital age. This move highlights Bhuvan's dedication to preserving the originality of his work and sets new benchmarks in the entertainment industry.
Image Source: The Bhaktivedanta Archives
4. The Bhaktivedanta Book Trust is a public charitable trust registered under the Bombay Public Trusts Act of 1950. The Trust is responsible for printing, publishing, and distributing books, writings, and speeches given by the Divine Grace A.C. Bhaktivedanta Swami Prabhupada. During an anti-piracy sweep in 2020, the Trust discovered that certain websites were carrying completely unauthorised copies of works whose copyright vested with the Trust, leading to a lawsuit for copyright infringement. The court granted an interim injunction restraining the website from issuing copies of the works authored by Srila Prabhupada and assigned to the Trust. The court also clarified that as a sanyasi, Srila Prabhupada could hold and own copyright in his works, as renunciation does not strip him of his rights over what he has created. The court decreed the suit in favour of the Trust, upholding Srila Prabhupada's copyright over his works assigned to the Trust.
Image Source: The Telegraph
5. Harley-Davidson has taken legal action against the UK retailer Next in London’s High Court, claiming that a T-shirt sold by Next violates its trademarks. The shirt, named "Black Fearless Stud Graphic," contains designs that Harley-Davidson alleges imitate its logo and includes graphics commonly associated with motorcycle branding. The US motorcycle manufacturer is seeking a court declaration that Next has infringed its trademarks and is asking for an order to destroy all items that breach its trademarks. Next, a well-known British retailer, has not provided a statement regarding the claim. Harley-Davidson has a history of protecting its trademarks and emphasises its vigorous worldwide trademark registration and enforcement program to maintain and enhance the value of its trademarks.
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Written By Shivani, Audio by Khushi

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