When brands cross the line: Moment marketing and athlete rights in India

In the aftermath of the Paris Olympics, India’s celebrated pistol shooter, Manu Bhaker, found herself at the crossroads of a challenge far away from the shooting range. Having bagged two bronze medals, Manu became a sensation and the face of numerous brands eager to ride the wave of her success—with only one twist—without her permission. Reports emerged that her image had been splashed across congratulatory posts on social media, with no consent from Manu or the agency managing her.

These unauthorized endorsements didn’t sit well with her team. An Economic Times Report suggests that Sports marketing agencies like Baseline Ventures and IOS Sports & Entertainment have issued legal notices to various brands on behalf of sports personalities PR Sreejesh and Manu Bhaker. In 2021 also, Baseline Ventures, which was the marketing agency for badminton player PV Sindhu, sent legal notices to 20 brands that used her name and pictures in ads to congratulate her on winning a bronze medal at the Tokyo Olympics.

In times where digital marketing strategies evolve rapidly, brands increasingly engage in “moment marketing” – a practice of capitalizing on trending events, particularly in sports, to promote their products or services. Congratulatory posts for sports stars like Neeraj Chopra and Manu Bhakher have become common, but they also raise important questions regarding the legal boundaries of publicity and personality rights. While such posts may seem innocuous, they can potentially violate the athlete’s publicity and personality rights. In this article, the author examines whether such practices infringe on the rights of athletes.

The right to publicity empowers individuals, especially celebrities like athletes and sportspersons, to control how their name, image, and other personal attributes are used commercially. ‘Publicity Rights’ aren’t specifically defined in Indian laws, but over the course of the evolving jurisprudence on the subject, several courts have recognized it as an extension of the Right to Privacy. Similarly, ‘Personality Rights’ are not explicitly codified in statutes, but have been recognized by courts under the Right to Privacy and the Right to Publicity, both of which are extensions of the fundamental right to life and personal liberty under Article 21 of the Indian Constitution. Further, aspects pertaining to personality rights can also be found under the Copyright Act, 1957.

While publicity rights focus on the economic value of one’s persona, granting individuals the exclusive right to commercially exploit their name or persona, personality rights are more focused towards an individual’s right to dignity, privacy and reputation. However, despite catering to different aspects, both safeguard against unauthorized endorsements, the misuse of a celebrity’s image, and the commercial exploitation of a person’s identity. They empower individuals to control and profit from the commercial use of their name, image, likeness, or other identifiable aspects of their persona. These rights are particularly significant for celebrities and sports personalities, whose public image is often a valuable asset.

The Hon’ble High Court of Delhi, in the case of Titan Industries v. M/s. Ramkumar Jewellers outlined, 

“When a prominent person’s name is exploited in advertising without their consent, the objection isn’t that no one should commercialize them; rather, it’s that they should have the power to decide when and how their identity is utilized. The right to publicity is the ability to limit how one’s identification is used for commercial purposes.”

The Hon’ble Supreme Court of India in Justice KS Puttuswamy (Retd) v Union of India, recognised the concept of the ‘inviolate personality of an individual’ as an integral part of the Right to Privacy under Article 21 of the Constitution of India. The recognition of personality rights could be traced back to the famous Auto Shankar Case [R. Rajagopal v. State of Tamil Nadu], where the apex court recognized an individual’s right to control the ‘commercial use of their identity’. Laying the foundation for the emergence of personality and publicity rights, this case acknowledged that individuals who are public figures have a right to protect the commercial value of their identity and prevent its unauthorized exploitation. In particular, the Hon’ble Court observed,

“The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a 'right to be let alone.' A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages.”

Moment marketing, particularly seen in the context of sports, involves using the success or achievements of athletes to create marketing content. Brands often post congratulatory messages on social media platforms, leveraging the athlete’s popularity to enhance their visibility and brand value. At first, sharing a congratulatory message might seem harmless, however, in the said process, brands also often tend to project to the public at large a sort of an association with such sports personalities, let alone the use of their names and persona. In fact, in view of the above, back in 2021, the Advertising Standards Council of India (ASCI) even discouraged the featuring of Olympic winners by brands in their advertisements without the athletes’ explicit approval. In order to avoid such a situation, brands need to tread carefully to avoid potential pitfalls. There are certain aspects which are required to be considered in the ambit of moment marketing:

1. Commercial exploitation: When a brand uses a sports star’s name or image to market its products or services, it can be considered commercial exploitation. Even if the intent is to merely congratulate, the underlying objective of enhancing brand recognition cannot be ignored. This could amount to unauthorized use of the athlete’s persona, infringing on their publicity rights.

2. Consent matters: The key legal issue is whether the brand has obtained the athlete’s consent for such use. Without explicit consent, the use of an athlete’s persona for commercial gain is likely to be deemed an infringement. Consent not only legitimizes the use but also often involves financial remuneration, which is part of the athlete’s right to control and benefit from their persona. In this regard, it is worthwhile to note that Clause 1.3 of the ASCI Code on Misleading Advertisements states,

“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.”

3. Deceptive association or misrepresentation: Another concern is the potential for misleading consumers into believing that the athlete endorses the brand. This can lead to a deceptive association or misrepresentation, which not only violates the athlete’s rights but can also constitute unfair trade practices under the Consumer Protection Act, 2019.

Given the legal risks associated with moment marketing, brands should adopt best practices to avoid infringing on publicity and personality rights:

  1. Obtain consent: Always seek explicit consent from the sports personality before using their name, image, or likeness in any marketing material. This consent should be documented and, where necessary, include financial compensation.

  2. Use generic messaging: If consent is not feasible, consider using generic congratulatory messages that do not directly associate the brand with the athlete. This reduces the risk of violating publicity rights while still allowing the brand to participate in the trending conversation.

  3. Legal consultation: Before launching any campaign that may feature a sports personality, a consultation with legal experts is paramount to ensure compliance with publicity and personality rights laws. This can prevent potential legal disputes and safeguard the brand’s reputation.

  4. Transparency with consumers: Ensure that any association with a sports personality is clear and transparent to consumers. Avoid creating any misleading impressions that could lead to deceptive association claims.

While there may be no sure-shot way or a straightforward solution to prevent misuse, trademark registration in the appropriate class may help these athletes claim ownership of their names. It will also allow them to license the names to ensure no unauthorised use of the same.

Section 2(m) of the Trademark Act, 1999 includes ‘names’ in its definition of ‘trademark’ which allows celebrities to register their names as trademarks to avoid misuse. Additionally, the Copyright Act of 1957, while protecting the rights of performers and authors, also extends its reach to sportspersons and celebrities. By granting them control over the reproduction and public dissemination of their work, the Act indirectly protects aspects of their personality tied to their public image and achievements. For athletes and celebrities, this means they have the legal backing to prevent unauthorized use of their persona in commercial ventures, ensuring that their identity and the value it holds are respected and preserved.

Moment marketing is an effective strategy for brands to connect with their audience, but it must be executed with a keen awareness of the legal implications. Publicity and personality rights are critical considerations, especially when leveraging the achievements of sports personalities. Brands must tread carefully, ensuring that they respect the rights of these individuals while engaging in moment marketing. Failure to do so could lead to legal repercussions, including claims for damages and injunctions against unauthorized use.

About the author: Arjit Benjamin is an Associate Partner at Prosoll Law.

If you would like your Deals, Columns, Press Releases to be published on Bar & Bench, please fill in the form available here.