The Issue of Trademark Disparagement and Freedom of Speech in the Era of Social Media Influencers

Introduction
In the current times, the term “Social Media Influencer” has become the new trend for the youth. Social Media Influencers are those individuals who have after a certain period of time established a significant presence and have gained a number of followers on different platforms such as Instagram, YouTube, Twitter, TikTok, and others. These influencers are quite popular, and influential and have the ability to persuade the common public with their online presence. Majorly these influencers are involved in generating revenue through advertisements and product promotion. The industries where these influencers are majorly involved include fashion, technology, beauty, fitness, travel, gaming and more. But at times the influence of these individuals can be a subject of issue due to the risks of Intellectual Property Rights involved.

Integration of Intellectual Property Rights
Trademarks are a form of Intellectual Property Rights that are specifically intended to distinguish and indicate the source of products offered by one owner in contrast to those of others. For influencers, it is crucial to seek written authorization from brands whenever their social media posts, blogs, videos, or images feature a brand’s name, trademark, logo, or product. Posting content containing another party’s Trademark, brand name, or logo, without consent, can potentially infringe upon their Intellectual Property Rights. When influencers make direct mentions of a brand’s products or services in their content, it qualifies as branded content, necessitating special authorization to incorporate the name of the brand. Trademark laws provide protection to the Trademark trademark owner against two types of violations: the potential for confusion and acts of deception. Influencers must steer clear of utilizing trademarks in ways that could potentially confuse consumers about the actual owner of goods or services or diminish the brand’s distinctiveness.
Trademark Disparagement arises when individuals make false or deceptive claims about a brand or its offerings, thereby harming its standing. Although Freedom of Speech & Expression is a fundamental right, it is not without limitations, particularly when it involves spreading false or malicious information that can harm a brand’s reputation. Influencers ought to carry out thorough research and confirm that the brands they collaborate with refrain from trademark violations and other unfair competitive practices. Likewise, brands should keep a watchful eye on their influencers to guarantee their comprehension of and adherence to applicable legal regulations.
Social media influencers do have a huge impact on the common public and it cannot be undermined. They carry the power to bring about a change in the perception as well as in the choices of an individual. It takes just one statement or promotion of a brand involving these influencers to determine the popularity of that brand. In a recent case of Marico Limited vs Abhijeet Bhansali wherein it was established that a Social Media social media Influencer influencer has certain responsibilities that they must keep in mind when publishing content regarding a brand. Marico Limited, the owner of the popular ‘Parachute’ brand in the coconut oil category, filed a lawsuit against Abhijeet, a social media influencer running the YouTube channel “Bearded Chokra”. A video was posted by Abhijeet titled “Is Parachute Coconut Oil 100% Pure?” in which he criticized Marico’s product. The video consisted of statements like “IT’’S NOT AS GOOD AS YOU THINK!! I’LL PROVE IT!!!!” and mentioned that “it had a similar smell to a dried or rotten coconut”. It was argued by Marico that the video contained untrue information, misleading the audience into believing that tests presented in the video supported Abhijeet’s claim that Parachute oil was not of a good standard. It was also claimed by Marico that Abhijeet was promoting two competing products by providing links to buy them online, arguing that his actions constituted ‘commercial activities’ rather than a typical product review by a common consumer.
The Court’s ruling emphasized that such individuals, like social media influencers, are well aware of their notable influence over their audience, and whatever they say, carries significant weight. It is very common for followers to blindly trust social media influencers and often assume the statements made by them to be factually true without thorough verification. The Court also determined that social media influencers do not have the same freedom to make statements as an ordinary person does. It noted that Abhijeet’’s statements were made recklessly and without regard for their truthfulness. The tests conducted in the video and the articles referenced did not substantiate the claims made.
The Court ruled that the defendant could not use the pretext of creating awareness or presenting the truth to the public as a cover to spread deceptive information that harmed the Plaintiff’s product. While campaigns aimed at educating the public with accurate information are encouraged, using such a justification to disseminate misleading information that damages, discredits, or undermines another person’s good or persuades consumers not to buy that product is unacceptable. Additionally, the utilization of the registered trademark of Plaintiff by Defendant without having the authority in a way that harms their distinctiveness or reputation goes against fair practices in business and commerce.
In the context of this trademark disparagement dispute, the Bombay High Court provided insights into the authority and responsibilities of social media influencers. The Court highlighted that “influencers are well aware of their significant influence over their audience and acknowledged the substantial and widespread impact of their statements”. It emphasized that followers of influencers tend to place significant trust in them, often treating their statements as unquestionable facts.
Furthermore, the Court underscored that social media influencers do not have the same freedom to make statements as an average person does. In this specific case, the Court argued that the defendant had a heightened duty to ensure the accuracy of his statements and to prevent potential misinformation. The Court observed that the statements were made recklessly and without regard for their accuracy.

Right of Freedom of Speech and Expression
Additionally, the Court observed that “the tests conducted by the Defendant in his video and the articles he referenced did not support the validity of his statements”. There was no indication that a reasonable person, based on these tests or articles, would believe the statements to be true, or that there was a reasonable possibility of them being considered as such. Coming to the Right of Freedom of Speech and Expression, according to the Court, “Defendant cannot claim a fundamental right to exploit the Plaintiff’s product by making false and malicious accusations for financial gain”. The Court applied the criteria for limiting the right to engage in commercial speech as outlined in Article 19(1)(a) and 19(2) of the Indian Constitution.
The Court emphasized that “the Fundamental Right to Freedom of Speech and Expression is not absolute. While preserving this freedom is crucial, it’s equally important to impose certain restrictions for maintaining social order in a democracy”. Article 19(2) provides with the basis on which limitations on the Right to Freedom of Speech and Expression can be placed. This right cannot be misused by individuals to harm, defame, discredit, or undermine the products of others through negative campaigns, as was done in this case.
Therefore, the Court held that “Defendant cannot, under the pretext of educating or presenting “true facts to the public” disseminate misleading information to disparage the Plaintiff’s product”. While campaigns aimed at educating the public with accurate information are encouraged, this excuse cannot be used to spread deceptive information that harms, discredits, or diminishes another product or manipulates consumers not to purchase it. Furthermore, the use of the registered marks of Plaintiff by Defendant without having Plaintiff’s permission, in a way damaging to their distinctiveness or goodwill, is inconsistent with fair and just practices in industrial or business affairs.
The Court ordered the removal of the impugned video but did not approve the Plaintiff’s plea concerning the Defendant’s forthcoming works. Instead, it ruled that whether the Defendant’s future content was disparaging or not would be determined based on the specific circumstances of each case. The court examined some comments on Bhansali’s channel on the video in which several customers of Marico had expressed their decision to stop purchasing the product after watching the video. On this basis, the court concluded that the harm suffered by Marico should not be underestimated and concluded that the video satisfied all three factors: intent, manner, and message established in Gujarat Cooperative v. Hindustan Unilever as deciding factors on the issue of disparagement. Therefore, the court concluded that Marico suffered special damages.
The content by the influencers must contain truthfulness and should be devoid of any kind of derogatory or false information. In today’s technologically driven era, it has become quite facile to access and use trademarks and brand names without prior permission from the authorized owner.

Conclusion
Hence, it can be inferred that the matter of Intellectual Property Rights and the involvement of social media influencers is intricate but can be most effectively addressed by implementing suitable protective measures. In safeguarding Intellectual Property, influencers should recognize their obligation to their followers when assessing a product. Opinions should remain impartial and grounded on factual information. It’s essential to refrain from making disparaging statements about a product that relies on false information or mere gossip. Furthermore, refraining from using any kind of intellectual property including any trademarks or copyrighted content without proper authorization and securing the required authorization and licenses beforehand is crucial.
However, this ruling marks a significant milestone as it’s the beginning instance of addressing social media influencers and their societal impact. Given the rapid expansion of online networks, it’s probable that similar cases will arise in the future.

[i] Notice of Motion No. 1094 of 2019 In COMIP No. 596 of 2019

[ii] SUIT (L) NO. 204 OF 2017 BOM HC

Yashica Dhawan

Author

A 3rd Year BBA LL.B. student of the Indian Institute of Management, Rohtak