Influencer Marketing and Trademark Law: Regulating Brand Collaborations in the Digital Age

Influencer Marketing and Trademark Law: Regulating Brand Collaborations in the Digital Age

Abstract

This article explores the relationship between influencer marketing which is a fast growing form of advertising, and India’s consumer protection and trademark laws. It tries to establish the stance that India's current legal framework, which is supported by disclosure standards and self-regulation, can preserve consumer confidence and trademark integrity while fostering innovative brand-influencer collaborations. The article assesses current issues and suggests changes to maintain a thriving, legally compliant ecosystem, drawing on laws, and regulations. It also demonstrates the new tendencies in the enforcement and offers policy recommendations to enhance compliance.

1. Introduction

Historical Evolution

Trademark laws in India were developed in a period dominated by physical commerce. Early disputes centred mainly around deceptively similar labels on goods sold in local markets. Courts were primarily concerned with protecting the source-indicating function of marks—ensuring that consumers buying soaps or textiles were not misled. Print and television advertising introduced new angles, but these continued to remain relatively controlled channels.

Present Scenario

Today, with over 700 million internet users in India and extensive social media penetration even into Tier-II and Tier-III cities, influencer marketing has become a mainstream advertising channel Influencers such as celebrities and micro-creators continuously use logos, slogans, and hashtags of brands in their posts and showcase them regularly. This closeness and non-formalities increase the trademark risks such as unauthorised use of logos, dilution, deceptive endorsements, and fake promotions.

The legal system of India has addressed these problems in a complex manner: statutory safeguards of the Trade Marks Act 1999, consumer protection of the Consumer Protection Act 2019 and self-regulation by the Advertising Standards Council of India (ASCI). This article situates influencer marketing within that framework and discusses challenges and future prospects.

Future Prospects

As digital advertising trends continue to grow, influencer marketing will only escalate. Key uncertainties include cross-border jurisdiction (Indian influencers reaching global audiences), regional-language disclosures, and the rise of AI-generated “virtual influencers”. When these issues are dealt with proactively, India will be in a position to maintain consumer trust without crushing creative collaborations.There are also uncertainties like how to define “prominent disclosure” in multilingual content; how to address cross-border promotions; and how to educate micro-influencers about Intellectual Property compliances.

Scope

This article focuses on the Indian legal context, related statutes, guidelines, and case law. International frameworks are mentioned only where relevant to Indian obligations.

1. Legal Framework

2.1 Trade Marks Act 1999

The Trade Marks Act 1999 provides the proprietor with the right of exclusivity to use a mark and unauthorized use that is likely to cause confusion or dilution. Sections 28–30 cover rights, limitations and permissible uses; Section 135 provides remedies, including injunctions and damages.

In influencer marketing, some use of a brand logo or tagline temporarily without the brand owner’s knowledge can also amount to infringement or passing off, particularly when the post suggests an endorsement. Conversely, fair use exceptions (such as honest comparative advertising) may apply, but influencers rarely make an effort to structure their content to fit these legal safe harbours.

2.2 Consumer Protection Act 2019 and Endorsement Guidelines

Section 2(47) of the Consumer Protection Act 2019 defines “unfair trade practice” to include false or misleading representations. Section 21 enables Central Authority to penalize misleading advertisements by endorsers.

In January 2023, the Department of Consumer Affairs issued “Endorsement Know-Hows” that prescribe disclosure standards for social media influencers.These guidelines require clear, prominent disclosures (such as “advertisement,” “paid promotion”) within the content itself. Influencers who fail to comply may be fined up to ₹10 lakh, and repeat offenders up to ₹50 lakh.

2.3 ASCI Guidelines for Influencer Advertising

The ASCI, India’s advertising self-regulatory body, released its “Guidelines for Influencer Advertising in Digital Media” in 2021 and updated them in 2023. They specify:

• Disclosures cannot be hidden in hashtags or captions, and shall be upfront.
  
  
• Short-form videos must display disclosures for at least three seconds.
  
  
• Virtual influencers must disclose that they are fictional.
  
  

These are the guidelines and even though these are not binding they have the weight of reputation, which supplements legal enforcement. ASCI publicly names violators, persuading and encouraging swift corrective action by brands and influencers.

2.4 Comparative Insights

The legal response of India to influencer marketing is a blend of statutory and self-regulatory mechanisms, unlike stricter regimes such as the US FTC model, with commercial influencers facing reputational penalties resulting in the enforcement of rights in statutory and contractual terms, respectively. For instance, in Castrol India Ltd. v. Gaurav Tanejacommercial influencers were deemed as contracted agents, which could be enforced and capable of being pursued in court due to infringement of intellectual property and contractual rights, respectively. Whereas, in Taken together, the cases and frameworks show that India is willing to strike a balancing act that is delicate: ensuring that brand reputation and trademark preservation are upheld without preventing real critique and partnerships that result in innovativeness. The scholarly literature confirms that the possibility to create an ever-shifting, hybrid model can contribute to the increase of compliance and retain consumer confidence in a transforming digital market.

1. Case Law and Emerging Practice

The courts in India have long been used to settle the cases related to the problem of influencer material using the developed principles of intellectual property and consumer protection. However, recent defeats indicate a fact-sensitive calibration as opposed to an a priori crackdown. Practically, judicial reasoning is dictated by the following two factors: (i) whether the influencer is a commercial or a contractual partner and (ii) whether the statements were evidence-based and public-interest criticism. The following are the cases in which they apply these touchstones.

Key decisions on brand protection.

The Indian courts established the protection in the form of famous marks and trade dress well before social media. Similarly in Daimler Benz Aktiegesellschaft v. Hybo HindustanThe Delhi High Court barred the use of the marks on similar goods and the same logo under the doctrine of passing-off, quashing the use of a well-known mark that unfairly claims the reputation of the mark under the guise of eroding its trade identity and goodwill in the marketplace. These cases serve as the theological cornerstone in defending against the misuse of trademarks in influencer campaigns.

Influencer as commercial partner – Castrol India Ltd. v. Gaurav Taneja (Bombay HC, 2024)

On an interim application by Castrol against the defendant influencer, the Court noted that Castrol had a proprietary interest in the creative content, and that the defendant's unlicensed postings and failure to include branding constituted an exploitation of such rights. This demonstrates that courts strongly apply IP and contractual rights where an influencer is acting on a branded campaign contract; influencers are not any different to any other contracted agent. Influencers and brands must thus document the ownership and the use of IP within written agreements.

Influencer as consumer advocate – San Nutrition Pvt. Ltd. v. Arpit Mangal & Ors. (Delhi HC, 2024).

In comparison, the Delhi High Court denied interim relief against influencers who had created a negative review of a nutraceutical product where the negative reviews were supported by independent laboratory reports. The Court observed that the statements were factual, evidence-based and did not constitute either a trademark infringement under Section 29 of the Trade Marks Act, 1999 or an actionable disparagement. This highlights the fact that verifiable consumer commentary in the common good is safeguarded, whereas the verifiability or falsity of claims can nevertheless result in a lawsuit.

Regulatory interest axis – Indian Medical Association v. Patanjali Ayurved Ltd. (Supreme Court, 2024, contempt proceedings).

The Supreme Court in the IMA v. Patanjali contempt case that arose out of allegedly misleading medical claims gave strict directions and warnings and took a careful watch of compliance, although the case involved a company and its promoters, as opposed to influencers. This has obvious consequences on influencer endorsements in delicate industries like health and wellness.

Conclusion and implications.

Combined, these powers disclose an approach that is principled, fact-specific:
(i) trademark distinctiveness and campaign integrity (Castrol) are safeguarded under IP and contractual remedies where there are commercial arrangements between the influencers and the party consenting to the campaign;
(ii) where the influencers are independent critics who provide verifiable facts, constitutional or statutory speech protections place constraints on IP or advertising bans (San Nutrition);
(iii) courts will enforce consumer-protection and regulatory mechanisms when claims are asserted to involve public health or systemic consumer-safety issues (Patanjali).

In practice, brands and influencers are encouraged to use open contracts, tight substantiation of assertions, and conspicuous disclosures such that promotional content is on the right side of these doctrinal tests.

1. Practical Insight for India

According to the practices in the industry, and a foray into the legal system, three aspects emerge that are core in ensuring that the Indian legal system is more humane and fair to its citizens:

• Contractual Clarity: Brands ought to include clear IP provisions in influencer agreements- clear on approved marks, terms, platforms and disclosure requirements. Agreements with a standard form assessed by legal experts would cause less ambiguity.
• Platform-Level Support: Indian regulators might have social-media platforms automatically create disclosures in the local languages and make them easier to comply with in the cases of micro-influencers who might not have legal representation and support.
• Capacity Building: Brief courses on IP and advertising law would be created by creators of the ASCI, law schools, or trade associations and would increase awareness and mitigate unintentional infringement. This would be through such programmes that could be implemented online and in regional languages.

The strong aspect of India is the teamwork policy of innovating. Rather than one single authority making all the rules, we have a conglomeration of regulators, industry giants and artists collaborating. This teamwork enables us to be very responsive to emerging issues such as those of emerging technologies.

1. Benefits and Challenges

Benefits:

• Market Access: Influencer marketing assists local and regional brands, particularly, the SMEs within Tier II and III cities to reach the desired customers, boosting consumer trust and cultural appeal.
• Consumer Choice: The consumers are able to evaluate products through peer demonstrations and this promotes informed choices and transparency.
• Legal Protection: While preserving trust and decreasing uncertainty among brands and creators, the Trade Marks Act 1999, Consumer Protection Act 2019, and ASCI guidelines are used to curtail deceitful endorsements and the unlawful use of what are known as trade marks.

Challenges:

• Ambiguity: "Prominent disclosures are not clear in cross-language, platforms, and formats, posing compliance risk.
• Proportionate Application: Regulatory reactions are dissimilar across the regions, which may cause forum shopping and unfair treatment of brands and influencers that act in compliance.
• Cross-Border Problems: Foreign viewers precipitate the need to act in accordance with the foreign rules which increases the compliance expenses.
• Technology Change: AI-created virtual influencers do not distinguish accountability to falsify representations, and the existing Indian regulations are not clear.

1. Conclusion and Recommendations

The existing laws and guidelines of India , though not perfect, provide a strong framework to regulate influencer marketing. It is argued that through the attention to transparent contracts, enhancing the education of people who can influence the situation, and the new technology-based solutions such as auto-disclosures, India can build the creative digital economy and safeguard both consumers and brand trademarks. The current system of a hybrid legal regulation and self-regulation is quite appropriate to address the changing demands of the digital era.

Recommendations:

1. Develop a model trademark-licensing clause for influencer contracts, circulated via brand associations.
2. Harmonize disclosure requirements across regulators and issue explanatory circulars to reduce variance in interpretation.
3. Encourage platform-based auto-disclosure tools in regional languages.
4. Launch IP-awareness campaigns specially for micro-influencers in non-metro regions.
5. Monitor AI-driven influencer content to ensure disclosure and trademark rules keep pace with technology.

Such steps will allow India to nurture a vibrant, legally compliant influencer ecosystem that safeguards trademark integrity and consumer trust.

• Influencer Marketing Report 2024, GroupM India.
• GroupM, ‘This Year, Next Year: India 2023’ (Advertising Expenditure Report) https://www.groupm.com accessed 4 September 2025
• Trade Marks Act 1999, s 28 (India).
• Consumer Protection Act 2019, s 2(47) (India)
• Department of Consumer Affairs, ‘Endorsement Know-Hows for Social Media Influencers’ (Press Information Bureau, 20 January 2023)
• Advertising Standards Council of India, ‘Guidelines for Influencer Advertising in Digital Media’ (updated August 2023)
• Federal Trade Commission, Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. Part 255 (2023)
• Castrol India Ltd. v. Gaurav Taneja (Bombay HC, 2024)
• Daimler Benz Aktiengesellschaft v Hybo Hindustan (1994) 55 DLT 300 (Del HC)
• Castrol India Ltd v Gaurav Taneja (Bombay High Court 2024).
• San Nutrition Pvt Ltd v Arpit Mangal and Others (Delhi High Court 2024)
• Indian Medical Association v Patanjali Ayurved Ltd (Supreme Court 2024) (Contempt Proceedings).