As PV Sindhu takes 20 brands to court for using her name and image without permission, here's how agencies and brands can be careful with moment-marketing in the future

• PV Sindhu and her agency Baseline Ventures is taking over 20 brands to court for using her image and name for moment-marketing, without her consent or proper permissions.
• The agency is seeking damages of Rs 5 crore from each of the brands.
• In wake of the incident, we speak to experts to understand how brands can be careful and avoid such legal complications when using moment marketing as a strategy.

Last week, ace shuttler made the country proud by becoming the first Indian woman to win two Olympic medals. The country came together to congratulate her on her historic achievement and brands joined in, as much to congratulate her as to ride on the trend that Sindhu had created with her win.

However, Sindhu is now said to be exploring legal options to take a lot of these brands to court, for using her name and image for their marketing purposes without proper authorization.

In the past few years, we have seen many brands build their social presence with the help of moment marketing. We have seen brands jump in on topical conversations with their own take on something that is trending. In doing so, they have many-a-times, used individuals and their names to make the most of the trending moment. The benefits are obvious, while coming up with content that many relate with, they are also able to become a part of the conversation, making it easier for them to grab eyeballs and become a part of the conversation.

However, with Sindhu taking an objection to the way her name has been used by brand, there is a chance that brands will become more careful about how they use a public personality's image or name in their content. Sindhu, who is managed by sports marketing agency Baseline Ventures, is reportedly seeking damages worth Rs 5 crore from brands that have used her name and images without her consent.

Speaking on what is wrong with the way these brands have handled things, Yashwanth Biyyala, Director - Talent and Partnerships, Baseline Ventures said, “The fact that these brands used PV Sindhu’s images and name on their posts is a clear infringement on the player’s privacy. Moreover, they are also clearly flouting the norms of the International Olympic Committee (IOC), that has put together clear guidelines around advertising during the tournament. In fact there was a blackout period between July 13 (when the Olympic Village opens) and August 10 (two days after the Closing Ceremony) when even brands that sponsor the player are not allowed to post about them. Only IOC and the Indian Olympic Association (IOA) partners are allowed to post about the players.”

In total, Baseline Ventures is taking close to 20 brands to court for flouting the rules, out of which legal notices have already been sent to 15. The brands that have already been sent notices include Happydent (Perfetti Van Melle), Pan Bahar, Eureka Forbes, ICICI Bank, HDFC Bank, Vodafone Idea, MG Motor, UCO Bank, Punjab National Bank, State Bank of India, Kotak Mahindra Bank, Fino Payments Bank, Bank of Maharashtra, Indian Bank and Wipro Lighting.

Over the years, we have seen many brands build a huge social media following on the back of moment marketing. In fact, Amul is one brand that has garnered immense love for their take on almost everything topical. Amongst new-age brands, we have seen the likes of Dunzo and Zomato churn out relatable, topical content time and again.

So following this incident, will agencies need to be doubly careful about how they go about communicating on topical issues, when using the names and images of individuals?

Sharing his view on the development, Lloyd Mathias, Business Strategist and former Marketing Head of HP Asia, Motorola and PepsiCo India said, “Moment marketing is fantastic in itself and brands that have their own take on topical issues do get consumers attention. However, when a brand uses a specific individual and his/her achievements to gain commercial mileage without prior permission or getting into a contract with that individual, then it is unfair. Brands should display more maturity and seek permission from athletes or their agents before using them overtly or covertly.Most Indian sportspersons outside cricket could benefit from a brand association that may provide them support – that could be monetary, or in terms of exposure or facilities.”

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 and 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," and ads that do not comply with this requirement may be in violation of the ASCI Code.

On how brands need to tread in situations like the current one, Manisha Kapoor, Secretary-General, ASCI said, “Brands need to be careful and calibrated about everything that goes into an ad, right from the visuals, the words, and the implication of their messaging. Advertisements are made with high involvement of strategic and creative resources, and it goes without saying that they must pay keen attention to aspects that can be challenged.”

Moment marketing is all about coming up with relatable posts when something is making news and reaping the benefits of joining the trend. Agencies usually have very less time in which to churn out content that is relatable and shareable, which is possibly why a few miss out on checking on the legal aspects of putting up such posts. However, in the wake of this incident, agencies will need to be doubly careful, said Rajni Daswani, Director – Brand Experience, So Cheers. On how agencies can avoid getting into trouble, Daswani said, “Agencies should definitely educated themselves on what they are and aren’t allowed to do because if they are providing that service to their clients, it is their responsibility to cross checking at their end. Secondly, brands can simply be creative without using individual names, image .You want to be a part of the moment, but you also don't want to get stuck into the legal implications. There are a lot of creative, indirect ways to do it and the internet is full of people who understand such indirect references.”

Sharing a similar thought, Manesh Swamy, Sr VP - Creative, Social, PR, Marcom, Logicserve Digital said, “The IPLs and the World Cups have stricter copyright laws and hence you don't see pictures of cricketers but victory silhouette poses in branded posts. The Golds and Silvers are still rare for us, so people and brands go a little overboard genuinely to celebrate the Olympic feat. If the brand is just celebrating these small moments of joy without selling anything, I guess it shouldn't be harmful. To ace moment marketing considering the current situation, the best move would be to do surrogate advertising and play with the essence of the moment.”

On what could be a simpler way of getting around issues like this while also being a part of the moment, Sushant Vithaldas - Head of Business, Schbang Bengaluru said, "For the larger audience of viewers and consumers, it’s very difficult to distinguish between a direct association and a congratulatory post or show of support by a brand. Significant progress is being made in the way influencers endorse a product with callouts for “#PaidPartnerships” or #Ad. A simple fix like this that carries the words “#MomentMarketing” on such posts is a far more easier way to address the issue and let brands and marketeers celebrate the moment in its true spirit."

So can this incident lead to the way moment marketing is done in the future? Sanjay Mehta, Joint CEO of Mirum India said, “For the time being, since ASCI has come down heavily on brands that used these stars without permission, other brands will be sensitive to this idea, and won't use any names if they don't have the rights. Just like brands have got tuned to not abuse the IPL property and the cricketers' rights and privileges. Considering that these non-cricket sports and the sportspeople do not get much visibility ordinarily, these controls will unfortunately, make them even less visible, and brands will not err to the side of caution. They may not even mention a wrestling hero or a woman golfer, for not knowing if they have any other brand engagements and could create conflicts! Moment marketing around events of this kind, will get constrained and may be limited to acknowledging the sport and not the star. These are challenging new areas to tread on, in the digital age, and reforms to these rules, so that guidelines have a reasonable balance, will emerge, ultimately.”