TOKYO OLYMPICS: A MOMENT OF TRUTH FOR MOMENT MARKETING
Consumer protection is becoming a cause for concern in the digital age, where technological nuances have made marketing tactics more subtle. Moment marketing has developed as one such popular means to target relevant audiences quickly by capitalising on a specific moment by building a presumption of an association or affiliation.
However, some endeavours with regards to moment marketing end up being too ambitious. For instance, there have been instances during the Tokyo Olympics where brands attempted to leverage the moment while blatantly ignoring advertising regulations or seeking prior approvals from athletes. Many brands have tried to seize the opportunity to "capture the moment" by passing off a link with celebrity athletes to gain visibility and traction.1 One such instance was the spike in advertisements congratulating Indian Badminton player PV Sindhu, who won a Bronze medal at the Tokyo Olympics. According to the news reports, PV Sindhu is considering taking legal action against several brands that attempted to falsely portray an association with her without any actual affiliation or prior permission.2
Moment marketing tactics wherein there is a presumed affiliation with a brand when there is no actual affiliation or endorsement could fall under the purview of misleading advertising. Referring to the athletes and using their images without their permission is also a potential violation of the Advertising Standards Council of India (ASCI) Code 3 (the "Code") because this could mislead consumers into believing that the athletes have endorsed the products.4 Although ASCI is a self-regulatory body and the Code does not have any legally binding effect, members of ASCI are bound by the Code and have also agreed to abide by it.
According to the Code, brands should follow fair advertising practices in the best interest of consumers and "ensure the truthfulness and honesty of representations and claims made by advertisements and to safeguard against misleading advertisements." Chapter I, Rule 1.3 states that, "Advertisements shall not, without permission from the person, firm or institution under reference, contain any reference to such person, firm or institution which confers an unjustified advantage on the product advertised or tends to bring the person, firm or institution into ridicule or disrepute. If and when required to do so by The Advertising Standards Council of India, the advertiser and the advertising agency shall produce explicit permission from the person, firm or institution to which reference is made in the advertisement." Therefore, as per the Code, explicit permission from the person should be sought when references are being made.
Legislative provisions and regulations issued by various regulatory bodies also play an essential role in the legal framework for misleading advertising in India. There is no single legislative mechanism addressing misleading advertisements as a whole. However, various statutes provide provisions for the same- The Consumer Protection Act 2019, The Trademarks Act, 1999, The Consumer Protection guidelines, etc. Further, even the Central Consumer Protection Authority Guidelines issued in September 2020 by the Ministry of Consumer Affairs help curb misleading advertisements.
Olympic Brand Protection Guidelines on Intellectual Property Rights
It is also worth noting that the Tokyo Olympics had issued extensive guidelines titled "Brand Protection Guidelines on Intellectual Property Rights"5 (the "Guidelines"). These Guidelines provide a list of the official sponsors of the Tokyo 2020 Olympic and Paralympic Games and state that the sponsors have "exclusive commercial exploitation rights for the intellectual property associated" with the Games. Further, the Guidelines also state that "The intellectual property and images associated with the Olympic and Paralympic Games are protected by the Trademark Act, the Unfair Competition Prevention Act, the Copyright Act, and other laws in Japan."
Furthermore, these Guidelines also have a clause related to ambush marketing wherein it has been stated that "intellectual property associated with the Olympic and Paralympic Games or the misappropriation of images associated with the Olympic and Paralympic Games by organizations or individuals, without authorization from the IOC, IPC, and the organising committee" shall be prohibited. Moreover, it has also been mentioned that acts by organizations or individuals that "appear as if they were officially involved in the Olympic and Paralympic movement interfere with the legitimate marketing activities undertaken by marketing partners, and damage the Olympic and Paralympic brand… Hence marketing activities cannot be established without the protection of the intellectual property, …"
Right to Privacy and Publicity
Many brands took to social media to congratulate the successful athletes; however, along with those posts, they also used their brand names and logos to associate themselves with the athletes. These brands latched onto the popularity of these athletes and the sports without having any commercial agreement with them. Hence, in this regard, the athletes could claim violation of their intellectual property rights and the right to publicity, stemming from the right to privacy under Article 21 of the Indian Constitution.
The Indian Copyright Act, 1957 (the "Act") provides some degree of protection of the intellectual property associated with a celebrity's image. Section 2(qq) defines "performer" and thus an inference can be made between a performer and a celebrity or public personality, including popular sports figures. Therefore, any person performing could be presumed to be a performer, including athletes and sports figures. Section 38 of the Act provides special rights to performers, and infringers of these performers' rights could be held liable under the Act. Section 38(3) also states that any attempt to make a visual or sound recording of the performance should be made with the performer's consent.
The purpose of the right to publicity is to avoid illegal commercial use of a public figure's image without any consent to do so. Sports personalities are often put in a situation that they have to press for their right to publicity because they use their popular enterprise for brand endorsements. Judicial interpretations have been helpful in developing the concept of the right to publicity in recent times. For instance, in the case of Sourav Ganguly v. Tata Tea Ltd.6, the Court had held that fame and popularity constitute intellectual property rights. In the case of RR RajaGopal v. State of Tamil Nadu,7 the Supreme Court had first recognised the right to publicity where the Court held that, "the first aspect of this right must be said to have been violated where, for example, a person's name or likeness is used, without his consent, for advertising - or non-advertising - purposes or for any other matter." Furthermore, the right to publicity was recognised by the Delhi High Court in the case of ICC Development (International) Ltd. v. Arvee Enterprises,8 where the Court held that the right of publicity extends to individuals and not just events.
While moment marketing seems to be on an upward trend, brands need to follow a cautious approach. Though often seen as a harmless marketing gimmick, moment marketing may be unfair to the celebrities and the brands that they endorse. If brands want to cash in on the success of these celebrities, they should ideally invest in them through the years before they reach the pinnacle of their careers.
Although the Indian legal framework on the concept of the right to publicity is still developing, it seems that statutory and regulatory provisions shall come to the rescue of these celebrities and ensure that brands do not unethically exploit their positions by capturing the moment to their advantage. A more comprehensive legislative provision condemning the use of intellectual property associated with the fame of individuals, especially sports personalities, shall help curb the misuse of these rights even further, and subtle marketing tactics may also fall under these provisions.
For any questions, please feel free to write to Ms. Vrinda Sehgal at firstname.lastname@example.org.
6.Sourav Ganguly vs Tata Tea Ltd [CS no. 361 of 1997]
7. RR RajaGopal v. State of Tamil Nadu (JT 1994 (6) SC 514)
8. ICC Development (International) Ltd. v. Arvee Enterprises, (2003 (26) PTC 245 Del)