Brands yearn for a slice of success at the Olympics

The news about the individual performances of Indian sportsmen and the team games at the Olympics led to medal wins and created quite a stir among the Indian public.

Sensing the sentiment of the nation, some enthusiastic brands placed ads with the names and images of the sportsmen, congratulating them on their success. In advertising clothing, their brands are taking on the sudden popularity of sports figures and infringing on their advertising rights.

This sparked the publicity rights debate, as these brands had not signed the athlete as their brand’s ambassador or sponsor. Media agencies representing the athlete are angry and threatened with legal action.

Right to publicity

The “right to publicity” is commonly referred to as personality rights, and in the absence of specific laws governing these rights, the words are used interchangeably. Essentially, it is an individual’s right to control the commercial use of their name, image, likeness or identity. There are no special laws in India to protect publicity rights. However, Indian courts have observed in several judgments that the “right to publicity” is an integral part of the right to privacy. This constitutional right is the right to life and personal liberty under Articles 19 and 21.

Indian copyright law protects the performance of the athlete. Therefore, using their voice, name, pictures, videos or game without permission is copyright infringement and liable to prosecution under the law. The Trademark Act 1999 makes no specific provision for the protection of publicity and image rights; however, section 2 (1) (m) of the Act defines “marks” to include names. Therefore, a well-known name that has built goodwill and a reputation can be protected as a trademark. Several court decisions have confirmed this position.

The Advertising Standards Council of India (ASCI) (an autonomous body) has specific guidelines for celebrity referrals to ensure that advertisements reflect the genuine and reasonably current opinion of the person (s) making those statements and should reflect adequate information about or experience with the product / service. However, indirect marketing and advertising around congratulatory messages misleads consumers into believing that the products / services are endorsed by celebrities when this is not true.

Sports fans have a deep connection to their teams, clubs, players and their favorite products. When they discover a product or service that uses images of their famous personalities, they take it as their endorsement. Thus, such advertisements and advertising media create deceptions and false images in the minds of consumers who tend to associate the brand with the sports personality.

As an ethical practice, advertisements may not use celebrity names and images without their prior permission. Sports marketing companies and celebrities have expressed concerns and objections to the use of their names and images in advertisements without seeking approval. This amounts to a violation of their privacy and intellectual property. However, it seems that brands are behind the lack of specific laws in India and publicity and personality rights being a gray area. Thus, they do not wish to miss the opportunity of the marketing moment to take advantage of the victory of Indian athletes at the Olympic Games.

For example, several brands have used PV Sindhu’s image without permission in their promotional materials, congratulating her on winning a bronze medal at the 2020 Olympics. Using her photos without permission violates her advertising rights, and his brand marketing agency plans to sue these companies. .

There are several such cases, for example a famous Indian fast food chain offering to distribute free “Chole Bhature” (chickpea curry with fried flatbread) to all customers who call themselves Neeraj. Apparently, to celebrate Neeraj Chopra’s success in winning the gold medal in the javelin throw at the Tokyo Olympics. The food chain used the image of sportsman Neeraj Chopra practicing this sport and the gold medal in its promotional offer without his knowledge.

To combat such trademark violations, ASCI stepped in and condemned the brands that capitalized on Indian athletes who won the Tokyo Olympics; referring to athletes or using their images without their permission is a potential violation of the ASCI Code.


Look ahead

With no clear advertising laws in India, businesses seem emboldened to capitalize on celebrity fame. While it’s unfair for marketing agencies who invest and work year round to promote celebrities for business purposes, companies without a contract or deal are pushing their brands by capitalizing on the moment of victory.

While there are court judgments recognizing publicity rights as an extension of privacy rights, and there is protection available under intellectual property rights as noted above, claim damages- interest for such misuse is a tedious process. Thus, the ASCI and a legal framework are necessary to frame this space so that athletes with short careers can collect their membership fees.

Rachna Bakhru

Partner, RNA Technology and IP Attorneys

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