India’s ace badminton player PV Sindhu created history by winning a bronze medal in the Tokyo 2020 Olympics held recently, joining the ranks of a select few who have one more than individual medal in the history of the games. While the country celebrated her historic achievement, in order to stay relevant and cash in on her success and popularity, various brands inserted themselves into ongoing conversations as well, in an act of what is called “moment marketing”.
Concerned that many brands were using this as an opportunity to get mileage out of such messaging, and potentially misrepresenting this as an endorsement, Sindhu and her agency Baseline Ventures are preparing to take 20 brands to court for such moment marketing. The brands include leading public and private sector banks, white goods manufacturers, and FMCG companies, with claims of Rs 5 crore from each of the brands. Baseline has had exclusive rights to manage Sindhu’s commercial and brand endorsement deals since 2016. The firm stated, where a brand makes a public display on such occasions, the brand is effectively trying to gain mileage out of such messaging, and it may lead many viewers to misconstrue the message as an endorsement.
This is not the only instance of Indian Olympic champions having encountered a buzz around their successes. A few days before Sindhu won her medal, weightlifter Saikhom Mirabai Chanu won a silver medal, and in her post-match interview, expressed a wish to eat pizza. The fast-food service chain Dominos pledged free pizzas for life to Chanu after the interview, but quickly enough, also compensated her for the use of her name and made a separate digital activation deal with the weightlifter.
What is moment marketing?
“Moment marketing” is a marketing strategy where brands take advantage of ongoing events, and try to gain relevance by inserting themselves into ongoing conversations at a marginal cost. Brands often also get involved in ambush marketing, which is when an advertiser “ambushes” an event, thus competing with other advertisers. Controversy arises because the brands who have officially sponsored the performers or celebrities in question may not be comfortable with other brands stealing the limelight.
The dairy cooperative, Amul, is the best case study, and arguably, an ambassador, for moment marketing in India. Many copywriters have risen to fame churning out Amul’s iconic regular advertisements on current events, which audiences eagerly look forward to even today. Over the years, Amul has changed its medium, moving away from physical hoardings to social media, but has successfully managed to stay relevant throughout.
Moment and ambush marketing are becoming increasingly prevalent in a world dominated by social media and short attention spans. The easiest way for brands to stay in visible is by being up to speed with news and follow trends. Tweets, memes, and short videos are means to become part of the conversation. The success of marketing campaigns is measured by audience engagement and viral content. But in this fight to stay relevant, brands often churn out content without thinking about the legal repercussions of their actions.
Legal Implications in the Sindhu issue
Sindhu and her agency have several rights at their disposal, as the marketing spree that brands seem to have indulged in after Sindhu’s medal-winning moment has multiple legal implications. Some of these are discussed here.
The Tokyo 2020 Olympics issued extensive regulations titled “Brand Protection Guidelines”, on intellectual property rights. These regulations essentially deal with the intellectual property around the Olympics. Among other things, they refer to trademark protection, where any attempt to convey, in any form, an association with an athlete or with Olympic emblems, is a violation of the trademark laws of the Olympics, which are punishable by Japanese trademark law.
The International Olympic Committee (IOC) also put out guidelines around advertising during the tournament. There was a blackout period between July 13 (when the Olympic Village opened) and August 10 (two days after the Closing Ceremony) when even brands that sponsor the player were not allowed to post about them online. Only IOC and (in India’s case) the Indian Olympic Association (IOA) partners, were allowed to post about the players.
To ensure brands do not infringe upon the privacy of celebrities, the Advertising Standards Council of India (ASCI) already has a code in place. The code says:
“Advertisements shall not, without permission from the person, firm or institution under reference, contain any reference to such person, which confers an unjustified advantage on the product advertised or tends to bring the person, firm or institute into ridicule or disrepute. If and when required to do so by ASCI, the advertiser and the advertising agency shall produce explicit permission from the person, firm or institution to which reference is made in the advertisement”
Advertisements that do not comply with this requirement may be in violation of the ASCI Code.
Trademark and copyright protection
In India, the infringement of a registered trademark is actionable under Section 134 of the Trademark Act. Remedies under trademark laws also include claiming damages from the entity which has illegally used the name of a celebrity. However, it might be difficult for PV Sindhu to get recourse under trademark law as Indian sportspersons do not usually register their personal or unique names to enable them to get relief under the law. Interestingly, many cricketers and movie celebrities have taken this path and registered their names. But the majority of Indian athletes and sportspersons, besides cricketers, are still new to this concept of trademarking their own names.
Under copyright law in India, the term “performer” may be construed to include sportspersons such as Sindhu. A performer holds a copyright in their performance and is entitled to restrain others from exploiting their intellectual property for commercial purposes.
Right of publicity
The right of publicity has evolved from the right to privacy, which is a fundamental right in India. Also referred to as personality rights, the right of publicity allows individuals to take charge of the commercial use of their identity, including their name, photographs (including likenesses), and other identifiers. Sindhu would likely be entitled to raise a challenge of the right of publicity against brands that have used her name and references to her winning moment for their own benefit without due credit or compensation.
For brands and advertisers, participating in live conversations has become the norm. It is a natural fallout and distinguishing feature of the always-on culture that we now consume. The Sindhu case is not going to be an isolated one. Brands will constantly want to be a part of whatever is happening around the world at any point of time, and such instances will only occur more frequently and invite more interest and publicity.
For example, brand participation should be carefully undertaken, particularly when a public personality’s image or name is involved. Unauthorised use of images or names can have a host of detrimental and costly legal consequences. Instead of viewing this is as a challenge or a limitation, this is in fact an opportunity for brands to be more creative in their engagement with topical issues, for which Amul has set a fine example over decades.
Equally, agencies handling personalities should also be aware of their clients’ rights and protect their intellectual property, among other things. A defensive strategy would be through filing for trademarks around names and structuring air-tight endorsements, as many cricket players have done, whereas an offensive strategy would involve, as in the Sindhu case, responding to instances of abuse as and when they emerge.
Possibilities abound, but clearly, all parties involved in this need to revisit their strategies to help them make the most of the moment.