1. Trademark misuse on social media includes–

• Disparagement of Product

Product advertising is one of the most effective ways to reach a specific audience and provide information about a product. However, market players may utilize unethical strategies to achieve a monetary advantage, affecting their competitor’s reputations through disparagement. Comparative advertising is one kind of disparagement. On the other side, disparagement involves making false claims or remarks about a competitor. As a result, disparagement is prohibited under Indian law. Thus, whenever a comparison advertisement states misleading facts about a competitor’s goods, it is considered disparagement and a trademark infringement. Comparative advertising is permitted as long as it does not degrade a competitor’s product.

In India, Section 29 of the Trademark Act of 1999, deals with comparative advertising, which states- “A registered trademark is infringed by any advertising of that trademark if such advertising—

1. takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or
2. is detrimental to its distinctive character; or
3. is against the reputation of the trademark”.

Furthermore, Section 30(1) of the Trademark Act of 1999, restricts the use of comparative advertising under Section 29. Comparative advertising is legal in India, however, there is a narrow line that must be followed: the competitor’s mark must be used honestly. As a result, the advertisement cannot be deceptive or harmful to the competitor’s goods.

The plaintiff in Euroke Forbes Ltd. v. Pentair Water India Pvt. Ltd. claimed a permanent injunction prohibiting the defendant from publishing, placing an advertisement, or distributing any material defaming or maligning the plaintiff’s product since it was a matter of disparagement. The plaintiff is a prominent water purifier firm that purifies water using UV rays. The defendant company, which is likewise in the water purifier industry, ran the following advertisement: “Water contains contaminants that are invisible to the naked eye and to your UV water purifier.”

In this case, the court concluded that, even though the defendants did not mention the plaintiff’s firm name explicitly, the advertisement amounted to disparagement of the plaintiff’s products since the plaintiff used UV rays technology. In this instance, the court ruled that it is pertinent to examine the advertisement in question in the context of the business of the appellant herein. Though the respondent has every right to market its product by claiming that its product is superior in quality, yet, at the same time, the freedom of expression i.e., the right to advertise, does not permit one to go to that extent as to cause damage or irreparable injury to the product of others. Merely because the respondent has every right to market its product by stating that its products are of superior quality over others, yet, it cannot go to the extent of stating that the contaminants are invisible even to UV water purifier.”

Comparative advertising is thus permitted and, in certain situations, promoted in India. It enables customers to understand the differences between two competing products and rationalize when choosing a product that meets their needs or desires. At the same time, the legislation makes it illegal to criticize a rival’s product for earning monetary benefits in an unethical manner. Thus, the goal of comparison advertising is to assist consumers in making an educated decision by giving accurate information about two similar items. Disparagement is also rampant in the virtual sphere. Social networking sites are a host for disparaging advertisements that try to demean other products. There is a dire need to curb this due to the virtual world’s significant impact.

• Hashtag and Trademark

The hashtag culture is represented by the usage of the ‘#’ sign before any word or phrase on social media platforms. This enhances a person’s job by restricting the search results to that exact phrase.

Section 2(1) (m) of the Trade Marks Act of 1999 states that “mark” includes, “a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.” Furthermore, as per section 2(1) (zb) of the act, the hashtag must be able to be graphically represented, and the tag must distinguish one producer’s goods/service from those of another; only then a hashtag be considered a trademark.

Common marks should be avoided, as individuals currently tend to hashtag everything on social media. This trend might work in the product’s or service’s favour or entirely against it. Nike, for example, has a registered trademark “Just do it” with a swoosh symbol, but it also uses hashtags like #running or #freerunning to promote its products, which are not trademarked. These connected hashtags aid in giving the product a better name. On the other side, a McDonald’s hashtag, #McDstories, became widespread on the social networking platform Twitter, and everyone used it to send complaints about the company’s products and services.

• Brand Protection

Online trademark infringement involves deep linking, pay-per-click advertising (is a type of internet marketing that involves advertisers paying a fee each time one of their ads is clicked), or offer of counterfeiting goods on online selling sites. This often exploits the brand-name of the company tampering its image and goodwill. In the case of  Mattel Inc. v. Jayant Agarwalla, Two Indian brothers designed a Facebook game called Scrabulous.  Mattel Inc. and Hasbrow sued the brothers for trademark and copyright infringement. The Court noted that Scrabble is a well-known brand, and that using a mark that is similar to it would be trademark infringement.

• Parody and Trademarks

Parody on social media involves humorously commenting on trademarks like logos or slogans, which is usually protected as free speech under fair use. However, it’s important to avoid confusing or implying endorsement by the trademark owner. Trademark owners have the right to protect their brand from uses that could cause confusion or dilution, so creators should clearly mark their content as parody and ensure it adds new meaning to the original. While social media platforms often allow parody, legal challenges can arise if the parody is deemed too extreme or damaging to the brand. So, creators should aim for humor while respecting trademark rights to avoid potential legal issues.

People for the Ethical Treatment of Animals v. Michael T.Doughney is one such case, in which the defendant created a website with the domain name peta.org that contained the plaintiff’s registered trademark. The defendant argued that his site titled People Eating Tasty Animals was a parody of the plaintiff’s name People for the Ethical Treatment of Animals. The court dismissed his defence and found him guilty of trademark infringement.

The protection of a trademark is crucial since it assists in the identification of the product. Infringement of a trademark produces widespread confusion, resulting in an economic loss for the owner. There is indeed a risk of trademark infringement because of the vast reach of social media.

• Challenges In Identifying Infringement On Social Media-

As much content is created and shared by users on social media sites, it can be difficult to identify instances of trademark infringement. The following are some typical difficulties in spotting infringement on social media: 

• Volume of Content: Every day, billions of users create a vast amount of content on social networking networks. It can be difficult to go through this vast amount of content and find instances of trademark infringement.
• Usernames and Profiles: Trademark-integrating or trademark-mimicking usernames and profiles can be used by infringers to cause misunderstanding or affiliation with the legitimate brand. It can be difficult to find these profiles among the large number of people. 
• Time Sensitivity: Social networking sites are renowned for their lightning-fast and instantaneous updates. Since infringing content can spread quickly, it’s critical to find and remove infringing content as soon as possible to protect the brand.
• Global Reach: Due to the widespread use of social media platforms, it is difficult to monitor and enforce trademark rights in a variety of languages and jurisdictions. Language obstacles and disparate legal systems can make it more difficult to find and deal with infractions.
• Limited Access to User Data: Social media sites frequently impose restrictions on users’ capacity to access and retrieve their data, making it more difficult to find violators and compile proof of their offence.

• Brand Association And Consumer Perception In Trademark

Brand association is like the thoughts and feelings that come to mind when people think about a brand. It’s all about what characteristics, benefits, emotions, symbols, or memories they connect with that brand. So, if someone hears “Nike,” they might think of quality, athleticism, or the famous swoosh logo.

Consumer perception is simply how people see and understand a brand. It covers everything they think, feel, and believe about it. For example, if consumers perceive a brand as trustworthy and reliable, they’re more likely to buy from it again and recommend it to others. Numerous elements, such as word-of-mouth, marketing communications, brand associations, and personal experiences, affect consumer perception. 

Consumer perception and brand association are significantly influenced by trademarks. A trademark is a distinctive name, symbol, design, or mix of these that sets one brand or product apart from another in the marketplace. Trademarks can arouse particular associations and perceptions in addition to aiding in brand recognition and differentiation for consumers. 

In the context of trademarks, consumer perception and brand association are interrelated. Firstly, brand identity is visually represented by trademarks, communicating qualities like innovation or reliability through style, color, and overall visual appeal, which consumers associate with the brand. Secondly, brand reputation, developed over time, is carried by trademarks, with positive consumer perceptions resulting in favorable views of the trademark. Thirdly, trademarks aid in differentiation, as they are associated with the unique qualities a brand offers, setting it apart from competitors in consumers’ minds. Also, the consistent use of trademarks across advertising and communication channels strengthens brand associations and shapes consumer perceptions, reinforcing the brand’s identity and values.

• Trademark In The Age Of Social Media Influencers

Trademarks continue to play a crucial role in the era of social media influencers.        

• Brand protection: Trademarks play a crucial role in safeguarding the intellectual property of brands, which includes their names, logos, slogans, and other distinguishing features. Trademarks assist social media influencers in safeguarding their own brand identities by making sure that their names, logos, and other brand assets are not misused or used without authorization. This is especially crucial as influencers establish their reputations and online presence. 
• Collaboration and endorsement contracts: When influencers work with brands via endorsement contracts, trademarks are important. These contracts frequently cover the use of the company’s trademarks, such as the brand name or emblem appearing in sponsored material, videos, or social media posts. Consistency and brand protection are enhanced by clear permits and standards for trademark usage.
• Influencer branding: To set oneself apart from the competition, influencers might create their own trademarks. This can entail coming up with a distinctive name, logo, or phrase that is connected to their persona and content. By registering these trademarks, an influencer can get legal protection and stop other people from making money off of their well-known brand. 

Intellectual property dispute: In the influencer industry, trademarks may give rise to legal disputes. This could include disputes resulting from endorsement or collaboration agreements, trademark infringement by influencers or other parties, or disagreements over similar or infringing marks. A legal foundation for settling these conflicts and defending the influencer’s and brand’s rights is provided by trademarks.