Exploring the Complexities of Trademark Disparagement and Freedom of Speech in the

Era of Social Media Influencers

In current times, the term "Social Media Influencer" has become a ubiquitous trend among
the youth. Social Media Influencers are individuals who have established a significant
presence and amassed a large following on different platforms such as Instagram, YouTube,
Twitter, TikTok, and others. These influencers have become quite popular, influential, and
possess the ability to persuade the public with their online presence. They are primarily
involved in generating revenue through advertisements and promoting products, primarily in
the fashion, technology, beauty, fitness, travel, gaming, and other industries. However, the
influence of these individuals can be a subject of issue due to the potential risks of
Intellectual Property Rights infringement. Therefore, it is essential to ensure that all parties
involved in these arrangements are aware of their legal rights and obligations, and comply
with the applicable laws and regulations.

INTEGRATION OF INTELLECTUAL PROPERTY RIGHTS

Trademarks are a crucial aspect of Intellectual Property Rights that serve to distinguish and
identify the source of products offered by one owner from those of others. For influencers, it
is imperative to obtain written authorization from brands whenever their social media posts,
blogs, videos, or images include a brand's name, trademark, logo, or product. Failure to do so
may result in potential infringement of the brand's Intellectual Property Rights. When
influencers directly mention a brand's products or services in their content, it qualifies as
branded content, which requires special authorization to incorporate the brand's name.
Trademark laws offer protection to the trademark owner against two types of violations: the
potential for confusion and acts of deception. Influencers must ensure that they do not use
trademarks in ways that could potentially deceive consumers about the actual owner of goods
or services or diminish the brand's distinctiveness. It is essential for influencers to comply
with the applicable laws and regulations related to Trademark usage, as any violation of such
laws can result in severe legal consequences.

Trademark disparagement is a serious concern that can have a detrimental impact on a brand's
reputation and standing in the market. While the freedom of speech and expression is a
constitutional right, it is not an absolute one, especially when it involves spreading false or
malicious information that can harm a brand's reputation. Therefore, it is imperative that
influencers conduct comprehensive research and verify that the brands they collaborate with
comply with all applicable legal regulations and refrain from any trademark violations and
unfair competitive practices. Moreover, it is the responsibility of brands to monitor their
influencers and ensure that they possess an adequate understanding of and adherence to the
relevant legal regulations. Failure to do so may result in legal consequences, which can be
detrimental to the brand's reputation and finances.

Social media influencers wield immense power in shaping the opinions and choices of the
general public, which cannot be underestimated. A single endorsement or statement by an
influencer can significantly impact the popularity and perception of a brand. In a recent legal
case, Marico Limited v. Abhijeet Bhansali, it was established that social media influencers
have certain responsibilities that they must observe when publishing content related to a
brand.

Marico Limited, the owner of the well-known 'Parachute' brand in the coconut oil category,
filed a lawsuit against Abhijeet, a social media influencer who runs the YouTube channel
"Bearded Chokra". Abhijeet posted a video titled "Is Parachute Coconut Oil 100% Pure?" in
which he criticized Marico's product. The video contained statements such as "IT'S NOT AS
GOOD AS YOU THINK!! I'LL PROVE IT!!!!" and suggested that "it had a similar smell to a
dried or rotten coconut". Marico argued that the video contained false information that misled
the audience into believing that the tests presented in the video supported Abhijeet's claim
that Parachute oil was of inferior quality. Marico also claimed that Abhijeet's actions,
including providing links to buy two competing products online, constituted "commercial
activities" rather than a typical product review by a common consumer. The court's ruling
emphasized that social media influencers are well aware of their considerable influence over
their audience, and whatever they say carries significant weight. Therefore, they have a
responsibility to ensure that the content they publish is truthful, accurate, and not misleading.
Influencers must also avoid engaging in commercial activities that may compromise their
objectivity and impartiality while reviewing and endorsing products.

It is a common phenomenon for social media followers to uncritically trust the statements
made by influencers and assume them to be factually true without proper verification. In the
recent trademark disparagement dispute between Marico Limited and Abhijeet Bhansali, the
Bombay High Court determined that social media influencers do not have the same freedom
to make statements as an ordinary person does. The Court noted that Abhijeet's statements
were made recklessly and without regard for their truthfulness, and that 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 unauthorized use of the registered trademark of Plaintiff by
Defendant in a way that harms their distinctiveness or reputation goes against fair practices in
business and commerce. The Court's ruling provides valuable 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 have a heightened duty to
ensure the accuracy of their statements and to prevent potential misinformation. In this
specific case, the Court argued that the defendant had a responsibility to ensure the
truthfulness of his statements and to avoid spreading misleading information that can harm a
brand's reputation and standing. The Court held that the defendant's statements were made
recklessly and without due diligence, and that such conduct is not acceptable in the realm of
social media influencer marketing.

RIGHT TO FREEDOM OF SPEECH AND EXPRESSION

With regard to the Right of Freedom of Speech and Expression, the Court held that the
defendant could not 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 while preserving the Fundamental Right to Freedom of Speech
and Expression is crucial, it is equally important to impose certain restrictions to maintain
social order in a democracy. Article 19(2) provides 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.

The Bombay High Court held that the defendant cannot use the pretext of presenting "true
facts to the public" to disseminate misleading information that disparages the plaintiff's
product. While educating the public with accurate information is encouraged, this
justification cannot be used to spread deceptive information that harms, discredits, or
diminishes another product or manipulates consumers not to purchase it.

Moreover, the unauthorized use of registered marks and brand names by influencers without
obtaining prior permission from the authorized owner is inconsistent with fair and just
practices in industrial or business affairs. In light of this ruling, it is crucial for influencers to
ensure that the content they publish is truthful and free from any derogatory or false
information. In today's technologically driven era, it has become increasingly easy to access
and use intellectual property without proper authorization.

Therefore, influencers must exercise caution and ensure that their content does not infringe
upon the intellectual property rights of others or spread false or misleading information that
can harm a brand's reputation and standing. Furthermore, the Court's ruling emphasizes the
responsibility of influencers to ensure that their statements are factually accurate and not
misleading. The Court noted that the harm suffered by Marico should not be overlooked, as
comments on Bhansali's channel indicated that several customers had decided to stop
purchasing the product after watching the impugned video.

Therefore, it is crucial for influencers to verify the accuracy of their statements and to avoid
spreading false or misleading information that can harm a brand's reputation or influence
consumer behavior.

CONCLUSION

The issue of Intellectual Property Rights and the involvement of social media influencers is
complex but can be effectively addressed by implementing appropriate protective measures.
In safeguarding Intellectual Property, influencers must recognize their obligation to their
followers when assessing a product. Their opinions must remain impartial and grounded on
factual information. It is essential to refrain from making disparaging statements about a
product that relies on false information or mere gossip. Furthermore, using any kind of
intellectual property, including trademarks or copyrighted content without proper
authorization, is unacceptable. Therefore, securing the required authorization and licenses
beforehand is crucial to avoid any infringement of intellectual property rights.

The ruling in the case of Marico Limited v. Abhijeet Bhansali marks a significant milestone
as it is the first instance of addressing social media influencers and their societal impact. With
the rapid expansion of online networks, it is highly likely that similar cases will arise in the
future. Therefore, it is essential for influencers to exercise caution and ensure that their
content does not harm the reputation of any brand or product and does not infringe upon
intellectual property rights.