INTRODUCTION
India’s influencer marketing space is skyrocketing just as fast as the legal tangle surrounding it. At the heart of it all is a messy, murky battlefield: trademark infringement. From off-the-books hashtag endorsements to untagged paid plugs, the freestyle Indian influencer economy is wading through and exposing the thin moral line between brand collaboration and intellectual property theft.
The irony? Whereas brands chase viral reach and influencers’ relevance, the Trademark Act, 1999, is practically silent on this new war between IP and fame. And to make matters worse, the sparse laws that do exist are outdated or easily ignored. Welcome to the unvarnished legal reality of India’s influencer economy. It is not just free stuff and #ad tags, it is about who gets to tell the story, and who profits off it without permission.
A BILLION-DOLLAR ECOSYSTEM WITH NO GUARDRAILS
The influencer marketing industry in India will be worth over ₹2,000 crore by 2025. It is considered one of the fastest-growing gig economy jobs in a country with more than 80 million content creators. But below the surface of shiny brand collaborations, there is a structural gap: There is no single law that addresses influencer-brand contracts, disclosures or IP protection.
In reality, most influencer contracts are handshakes or are operated under terrible one-way contracts. They inadvertently infringe trademarks by misusing brand names, logos, or even slogans, which is contrary to Section 29 of the Trade Marks Act, 1999, which prohibits unauthorised use resulting in confusion or association with a registered mark.[1] But the law barely twitches — unless a quarrel winds up in a courtroom. In the meantime, brand equity oozes, and influencers remain as legally in the dark as they ever were.
WHEN “COLLABORATIONS” BECOME EXPLOITATION
That is an uncomfortable fact: influencer-brand relationships in India are seldom equitable. Big names actively seek to get micro-influencers under a rubric of “exposure” or “gifting,” getting them to use logos, test products and hashtags for free, without ever securing a proper licensing agreement or actual trademark consent that is clear.
In the already hypercompetitive influencer economy, to make matters worse, some content creators masquerade as or falsely represent brands to look influential, creating an ideal of being ‘sponsored’ — befuddling viewers and occasionally the brand too. This is a true case of passing off, where an unauthorised third party is attempting to take advantage of the goodwill of the brand, as laid down in Cadila Healthcare Ltd. v Cadila Pharmaceuticals Ltd.[2] While they may seem clever, those are instances of actionable trademark infringement. Not many brands sue over this, either out of concern for a potential PR backlash or the cost of a legal battle. The result? A free-for-all with at best marginal legal accountability.
THE “BRAND AMBASSADOR” TRAP
Under the Consumer Protection Act, 2019, Section 2(1)(c) and such other provision, an “endorsement” means any message that would reasonably make a consumer believe that the celebrity or influencer has used the product or has knowledge about the product and or service.[3]
This is precisely where the misuse of trademarks comes in. Here’s one way it works: influencers, a lot of the time, promote fake or unverified products with logos that are pants-on-head close to established brands. Instagram shops, Telegram deals, and WhatsApp groups are awash in “dupes” that bear uncannily similar insignia, confusing potential shoppers and tarnishing the rep of the original trademark holder. The law has provisions. But enforcement? Rare, selective, and painfully slow.
NO DISCLOSE, NO REMEDY: ASCI’S TOOTHLESS GUIDELINES
The “Guidelines for Influencer Advertising in Digital Media” were released in 2021 by the Advertising Standards Council of India (ASCI). These aimed to provide some kind of guidance about grey areas of undeclared advertising, misleading claims and fake branding.[4]
But there’s a catch: ASCI is not a government body. It cannot sue or fine — only to suggest taking down content, or to warn regulators. Of course, the power vacuum is staggering since even the Consumer Protection (E-commerce) Rules, 2020, do not include any offences specific to influencer-based trademark misuse. ASCIs’ role for influencers is mostly advisory and less watchdog. And brands? They prioritise reach over regulation.
PLATFORM RESPONSIBILITY: THE BLACK HOLE OF ACCOUNTABILITY
Now, when there’s trademark infringement on YouTube, Facebook or Instagram — who is to blame? The platform? The influencer? Or the brand?
Intermediaries are not liable under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, if they are merely hosting third-party content.[5] But if they don’t listen to takedown notices, they lose that safe harbour. But in reality, trademark holders can only seem to scrounge up very little quick attention from sites unless their requests are accompanied by threats of law or the press. And when it comes to removing bad content, the process is slow, slow and unequal. The result? An economy of content where virality is valued higher than veracity, even if it means serially violating trademark law out in the open.
COMPARATIVE REALITY: WHAT FOUR OTHER JURISDICTIONS DO ABOUT THIS
The US and UK are well beyond that. The UK’s Intellectual Property Office works with brands and influencers to inform them of their IP rights, and the US has stringent disclosure laws and penalties for misleading branding.[6] In India, though, we’re still grappling with what constitutes one paid partnership. We’re not anywhere near addressing the tougher issues of trademark dilution, false association and secondary liability with influencer content.” The discrepancy is disgraceful — and it is dangerous.
WHAT THE LAW MUST CATCH UP WITH
This is no longer passive infringement.” The trademark violations resulting from influencer marketing today are an intentional part of the marketing plan for both brands and creators. Below are some of the immediate reforms that we need.
→ Dedicated trademark rules specifically for digital media influencers under the Trade Trademarks Rules by the Ministry of Information & Broadcasting or DPIIT.
→ Non-negotiable IP terms on influencer-brand contracts, sector-correct standardised with branding scope of logos.
→ Actual penalties for misinformation, from influencers and the platforms that host them.
→ Digital IP literacy programs to educate creators (80+ M) on the ground on the fundamentals of trademark law, can’t afford ignorance anymore.[7]
Until then, the digital economy will continue to bleed brand equity due to misuse, misrepresentation, and distortion.
CONCLUSION
India’s influencer marketing boom has spawned serious legal and ethical concerns, particularly over the abuse of trademarks and brand identity. The absence of specialisation in law leaves brands and influencers vulnerable to a grey area where trademark infringement, passing off, and misleading advertising go unchecked. While the Trade Marks Act 1999 and Consumer Protection Act 2019 offer some protection, their application on online platforms is slow and ineffective. Standards by bodies like ASCI are mostly advisory in nature, causing a regulatory gap that affects brand equity. Contrarily, markets like the US and UK have tightened frameworks for ensuring transparency, accountability, and protection of intellectual properties. To safeguard consumers as well as corporations, India must implement specialised digital IP laws, standardised influencer contracts, and stringent penalties for violations. Without these kinds of reforms, the fast-growing influencer economy becomes unsustainable, based on processes that erode trust, rig markets, and beat up the very brands that it is supposed to promote.
Author(s) Name: Nikita Shrivastava (Kanoria School of Law for Women, affiliated by Ambedkar Law University, Jaipur)
References:
[1] Trade Marks Act 1999, s 29(2) and (4).
[2] Cadila Healthcare Ltd v Cadila Pharmaceuticals Ltd [2001] 5 SCC 73.
[3] The Consumer Protection Act 2019, s 2(1)(c).
[4] Advertising Standards Council of India, ‘Guidelines for Influencer Advertising in Digital Media’ (ASCI: 2021).
[5] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, r 3(d).
[6] Federal Trade Commission, ‘Disclosures 101 for Social Media Influencers’ (2019).
[7] UK Intellectual Property Office, ‘Influencers and Intellectual Property: The Basics’ (UK Government, 2023).
