15/08/2021 Explained: Why PV Sindhu is suing some brands - The Economic Times

Explained: Why PV Sindhu is

suing some brands

In the guise of congratulatory posts on social media, some companies used Sindhu’s name and image to increase their visibility

Synopsis

Brands are constantly looking for opportunities to build recall and connect with their customers. In doing
so, they must take into consideration aspects around individual privacy, consent, and fair trade, failing
which, the brand runs the risk of getting tarnished.

The news of PV Sindhu taking some well-known brands to court followed close
on the heels of her historic bronze medal at the Olympics. These brands had put
up congratulatory posts on social media using Sindhu's name and image, and
appeared to be capitalising on her achievement to increase their brand visibility.

This technique of “moment marketing” has been used by some brands to great
effect in the past. However, these particular posts could be problematic for the
following reasons:

— The posts are likely to create an association between Sindhu and the brands in
the minds of the public, akin to her endorsing the said brands. Under Indian
laws, this can be considered an unfair trade practice, especially if such an
association is found to be prejudicial to consumer interests. This may result in
monetary penalties being imposed on the brand
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15/08/2021 Explained: Why PV Sindhu is suing some brands - The Economic Times
monetary penalties being imposed on the brand.

— Such posts may also violate the Advertising Standards Council of India's
(ASCI) code for advertising content, under which advertisements making
references to a person may lead to an unfair advantage for the product/ brand
advertised and such content must obtain prior permission of such person(s).
While the ASCI is a voluntary industry body for self-regulating advertisements, if
the concerned brands are members of the ASCI, they are expected to abide by its
code.

— Such posts can also violate Sindhu's right to control the commercial use of her
identity, including the ability to prevent others from using her name, image or
other aspects of her personality for commercial purposes without her consent.
While this right is not codified in any Indian statute, courts have recognised it as
an aspect of privacy. Celebrities such as Rajnikanth, Daler Mehndi, Amitabh and
Jaya Bachchan have successfully invoked this right to restrain the use of their
name, persona and image without consent. If there is evidence of persistent or
widespread appropriation for commercial gain, courts may even award damages.

— Under the bylaws of the Olympics Charter, only the Olympic partners can put
up such posts during the games period. Sindhu's personal sponsors may put up

congratulatory posts before and after the games period.

Does this mean brands have no choice to associate themselves with such
milestone moments?

Here are some examples of how brands have successfully capitalised on

milestone events while minimising the risk of noncompliance of the laws.

A leading dairy brand, arguably a pioneer in moment marketing, comes up with

congratulatory cartoons after every major sporting event. Typically, these do not
contain actual reference to the contestant or the event, instead resorting to
images and puns to create the association in the viewer's mind. The brand also
officially sponsors some of these events, such as the Tokyo Olympics.

When athlete Hima Das won five gold medals in less than a month at European
track and field events, a leading delivery services brand as well as a passenger car
brand came up with eye-catching captions that were a play on her name with a
sketch or silhouette of a racing woman.

Many brands have announced attractive rewards for the Tokyo 2020 Olympics
medallists. For instance, a leading food brand offered Mirabai Chanu lifetime
complimentary pizza. It also followed up on that offer by striking a deal with
Chanu for social media association.

Brands are constantly looking for opportunities to build recall and connect with
their customers. In doing so, they must take into consideration aspects around
individual privacy, consent, and fair trade, failing which, the brand runs the risk
f tti t i h d
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15/08/2021 Explained: Why PV Sindhu is suing some brands - The Economic Times
of getting tarnished.

(The writer is a counsel with Trilegal. Views are personal.)

(Disclaimer: The opinions expressed in this column are that of the writer. The facts and opinions expressed here do not
reflect the views of www.economictimes.com.)

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