With PV Sindhu mulling legal action, moment marketing faces moment of truth

Brands confronted with the question of what's acceptable and what isn't

The success of Indians at the Tokyo Olympics has presented brands with the perfect opportunity for “moment marketing” — where companies or advertisers pass off a link with the celebrity to gain visibility and traction.

But with the sports marketing firm that represents two-time Olympic medallist P V Sindhu frowning upon brands for using her name and image in posts and adverts without her permission, it has raised the question of marketing ethics even if it is party to the mood of celebration in an athlete’s moment of triumph.

According to a media report, Baseline Ventures, which represents Sindhu, is mulling legal action against brands and companies including Happydent maker Perfetti Van Melle, Vicks-maker P&G, Pan Bahar and a few others.

Advertising professionals advise moderation on both sides, suggesting that brands should not exploit a celebrity’s achievements for commercial ends and the latter should not view advertisers with suspicion. Legal experts, however, point out that there are clear boundaries and guidelines that companies should not breach.

Three years ago, Baseline Ventures, on behalf of Prithvi Shaw, had also sued Swiggy and Freecharge after they put up posts on social media that played on the cricketer’s maiden century.

But nothing came of it, says Sandeep Goyal, brand expert and MD of ad agency Rediffusion.

According to him, it is unfair for an advertiser to pass off a connection to a celebrity and derive commercial mileage but there is nothing wrong in saying congratulations and “putting your logo with it”.

“Athletes gain eminence from the claim that they are winners. So when people congratulate you, you cannot be looking for motives in everything. A certain amount of sportsmanship should be seen here, too,” he adds.

Dairy brand Amul is famous for milking topical issues and conjuring up popular ads with eye-catching commentary. Often, they are classic examples of moment marketing, and it had its say on Shaw back in 2018. Goyal feels that celebrities or their handlers tend to be easy on Amul because of its distinct stamp that is seen as an enhancement of one’s brand value.

Amul has already feted Sindhu — as it did when she clinched her first Olympic medal in Rio de Janeiro in 2016 — after her win in Tokyo. It has also doffed its hat to Tokyo medallists Saikhom Mirabai Chanu and Lovlina Borgohain.

Amul’s congratulatory campaigns, however, are not in breach of rules, as it is a sponsor of the Indian team in Tokyo, points out Nitin Potdar, partner, M&A, at law firm J Sagar Associates.

He says that the Tokyo Olympics has issued extensive regulations, titled "Brand Protection Guidelines", on intellectual property rights.

“The regulations are quite strict on intellectual property around the Olympics. Ambush marketing, where you try to associate yourself with an athlete without doing any direct marketing or try to convey to people in some form that you are associated with the athlete or Olympic emblems, is a clear violation of the trademark laws of the Olympics,” Potdar says.

According to the Brand Protection Guidelines, examples of ambush marketing include symbols and images such as unauthorised use of the Olympic emblem and symbol; use of terms that bring to mind the Games; use of Olympic terms and torch images; graphics that resemble the Olympic symbol; and unauthorised PR publications. Further, it is clearly stated that no company or organisation, except for the Tokyo 2020 partners, are allowed to engage in marketing activities and public relations activities using the names and images of the Olympic or Paralympic Games, even if they are/were under a contract with the Tokyo Organising Committee of the Olympic and Paralympic Games or any other organisations related to the Olympic or Paralympic Games, Potdar adds.

Violations are punishable by Japanese trademark law.

The International Olympic Committee’s guidelines on commercial opportunities for participants during the Olympics also list principles of advertising by non-Olympic partners. These include allowing them to use images of Olympic participants for advertising during the period of the Games, subject to obtaining any necessary consent from the participants.

Also, a section on congratulatory advertising says that non-Olympic partners can take it up in support of their contracted athletes before and after the Games period, but without using any Olympic properties.

Potdar says that ambush marketing is momentary, and it may be that by the time any legal action is taken, it’s too late. So then the action would only lie in terms of damages, which takes years. “Nevertheless, I would expect reputable companies to stay away from such tactics,” he adds.

What is moment marketing

A marketing approach in which brands become part of a conversation or trend, and also pass off a link with celebrities to gain traction. A recent example is ads and posts that are part of the online praise for P V Sindhu

What admen say

Brands should avoid appropriating a celebrity’s achievements for commercial ends, and the latter should also allow advertisers some latitude when they are congratulating them

What Olympics guidelines say

* The Brand Protection Guidelines of 2020 Olympics take into account ambush marketing, which include unauthorised use of Olympic symbols

* Violations are punishable by Japanese trademark law