Trademark Infringement in the Era of Influencer Marketing

Introduction

The fusion of trade and social media has altered the brand customer relationship. While the Indian influencer marketing sector is currently valued at 3600 crores (approximately) in 2024, it is predicted to increase by 25% in 2026. Both established and emerging brands collaborate with influencers and market their products to huge masses of users over various social media networks like Instagram, Youtube and short form video based social media networks. The fast boom in the industry also gives rise to another bigger issue- intentional advertising and promotion of fake, duplicate and/or goods which may resemble and misuse trademarks of genuine product brands.

When an influencer flaunts (whether knowingly or unknowingly) a handbag sporting a logo which closely mimics that of a luxury house, or advises on buying a skin care product whose packaging and brand name, which are made to create an impression of a popular brand, raises several thorny issues of civil as well as criminal liability. The Indian legal regime of determining these issues is provided by the Trade Marks Act, 1999; however, the issue demands closer examination vis-à-vis the three-way relationship that exists between trade mark holders, operators of the counterfeit brands, and the influencers. This article analyzes the scope of infringement, the liabilities of each player in the entire chain, possible defences and remedies for trademark owners.

Infringement occurs when a person, not being a registered proprietor or licensee, uses in the course of trade a mark identical with, or deceptively similar to, the registered trademark in relation to goods or services for which the mark is registered, thereby causing likelihood of confusion or association in the minds of the public. Extended protection is available to marks with a reputation: even where the infringing use is applied to dissimilar goods or services, liability may attach if the defendant takes unfair advantage of, or is detrimental to, the distinctive character or repute of the registered mark.

The rule about using something in advertising is very important when it comes to influencers. It is against the law to use a registered trademark in advertising that goes against honest business practices or that hurts or takes advantage of the mark. This part of the law makes it clear that paying for content, video reviews, or product placements on social media to promote a copycat brand is against the law.

Liability of the Influencer

Direct Infringement

An influencer who actively promotes a duplicate brand-knowingly displaying or describing a product bearing an infringing mark, may themselves be a direct infringer under the Act. The key inquiry is whether the influencer is “using” the mark “in the course of trade.” Courts in India have interpreted this phrase broadly: promotional activity that facilitates commercial transactions and is undertaken for consideration, whether monetary or otherwise, will ordinarily satisfy this threshold. A fashion blogger paid to endorse a counterfeit luxury product is not a mere passive conduit; she is an active participant in the chain of infringement.

The Knowledge and Intent Dimension

Under the Act, civil liability does not necessitate evidence of knowledge or intent; infringement constitutes a tort of strict liability in its civil aspect. An influencer who endorses a counterfeit brand without realising it is counterfeit is still legally responsible. But knowledge is very important when it comes to criminal liability. If you knowingly put a false trademark on goods or services, you could go to jail for up to three years or pay a fine. An influencer who knows that the brand she promotes copies a registered mark could be charged with a crime, as could anyone who makes the false mark happen.

From a practical standpoint, courts may regard “wilful blindness” as in consciously avoiding inquiry into whether a brand is genuine. Influencers who don’t do even basic research on brands they don’t know about what could be held responsible for the infringement, especially if the differences between the duplicate and the original are clear.

Liability of the Duplicate Brand Operator

The operator of the duplicate brand bears primary liability. It is the entity that manufactures, distributes, and markets goods bearing the offending mark, and it infringes the Act in the most direct sense. Where the operator is a company, liability extends to every person in charge of and responsible for the conduct of the company’s business at the time the offence was committed, unless they can demonstrate that the offence was committed without their knowledge or that they exercised all due diligence to prevent it.

Strategically engaging influencers to build consumer trust in a duplicate brand aggravates the operator’s culpability. Indian courts have emphasised that active steps to create an aura of authenticity-including targeted marketing efforts that heighten the risk of brand dilution and consumer deception, and will weigh against an infringer when fashioning relief. The deployment of influencers to lend credibility to a counterfeit product line is precisely the kind of calculated conduct that courts have found particularly egregious.

Regulatory Overlay: Consumer Protection and ASCI Guidelines

The trademark liability analysis is not a stand-alone process. The Consumer Protection Act of 2019 makes it illegal to run ads that are misleading and requires endorsers to make sure that what they say is true. This framework says that promoting a fake brand as if it were the real thing is a misleading endorsement.

The Advertising Standards Council of India’s Guidelines for Influencer Advertising in Digital Media say that influencers must clearly label all promotional content with tags like #Ad or #Sponsor and check that the products they are promoting are real before endorsing them. The Central Consumer Protection Authority’s Guidelines for Prevention of Misleading Advertisements and Endorsements, 2022, say that people who endorse a brand must have actually used the product and must tell the brand about all of their connections to it. If you don’t follow the rules, you could face civil lawsuits and regulatory action from the CCPA.

Available Defences

The Act provides certain limits on the effect of a registered trademark. An influencer who uses a mark for purely descriptive or nominative purposes-identifying the original brand in an honest comparative review, for instance-may invoke the honest-practices defence, provided the use does not take unfair advantage of, or prove detrimental to, the distinctive character or reputation of the registered mark.

In practice, this defence rarely assists an influencer promoting a confusingly similar product. Where the entire commercial purpose is to substitute the duplicate for the original in the consumer’s mind, the honest-practices criterion cannot be met. Deliberate confusion is not shielded by the advertising exception, as courts have consistently held when addressing content that trades upon a competitor’s reputation under the guise of comparison.

Emerging Judicial Trends

Indian courts are becoming more willing to issue urgent ad-interim injunctions against the sale and promotion of counterfeit products online. In Amway India Enterprises Pvt. Ltd. v. 1MG Technologies Pvt. Ltd., the Delhi High Court recognised that selling brand products online without permission and lying about them can quickly and permanently hurt goodwill, so they granted temporary relief until the trial. The logical extension of this reasoning leads to influencer-mediated promotion of duplicate brands: the viral spread of infringing content makes it even harder to measure and fix damage, so timely injunctive relief is necessary.

Similarly, courts have made an explicit distinction between legitimate comparative advertising, on one hand, and content masquerading as comparative advertising, that exploits the good name of the competition. The Delhi High Court in Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd. upheld the liability for intentional confusion irrespective of how the content was presented. The doctrine clearly extends to cases involving influencers who tout look-alike copies by virtue of their likeness to famous works.

In the case of Christian Louboutin SAS v. Abubaker & Ors., it was observed by the Delhi High Court that any step taken in order to make a replica of distinct features of the mark will aggravate the infringement. Such reasoning will be especially relevant for any campaign by an influencer to legitimize the fake product.

Remedies Available to the Trademark Owner

• Suits for trademark infringement and passing off must be instituted before the District Court. The court is empowered to grant the following civil remedies:

• An injunction restraining further infringing use, including orders for the take-down of infringing social media posts and sponsored content;

• Damages or, at the election of the plaintiff, an account of the profits derived by the defendant from the infringing activity;

Delivery-up and destruction of infringing goods, labels, and promotional materials.

On the criminal side, a complaint before a competent magistrate can initiate prosecution of the duplicate-brand operator and any influencer shown to have acted with knowledge, leading to imprisonment of up to three years and/or a fine under Section 103 of the Act.

Conclusion

Although influencer marketing is vibrant, it does not exist in a vacuum from a legal perspective. The Trade Marks Act, 1999 gives trademark holders adequate legal instruments to fight against everyone along the chain of infringement, starting with the producer of the counterfeit item to the influencer that provides a stamp of legitimacy for the product. Civil liability applies to anyone using an infringed mark in business, while criminal liability binds those using such marks knowingly.

The best thing to do for influencers is to perform due diligence before advertising anything, to make sure that it’s not a counterfeit of an existing product and that you’re following ASCI guidelines and CCPA regulations regarding disclosure. You cannot claim ignorance in civil cases concerning trademarks, while in criminal cases, your excuse will be limited.

As Indian courts progressively adapt established principles to digital realities, one conclusion is inescapable: the follower count of an influencer does not determine her legal exposure-it merely determines its magnitude. Brands, platforms, and creators alike would do well to treat trademark compliance not as an afterthought but as a cornerstone of responsible digital commerce.

Author: Akul Chauhan, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

References/End-Notes

1. Trade Marks Act, 1999, No. 47 of 1999 (India).

2. Trade Marks Act, 1999, § 2(1)(zb).

3. Trade Marks Act, 1999, § 29(1).

4. Trade Marks Act, 1999, § 29(4).

5. Trade Marks Act, 1999, § 29(6).

6. Trade Marks Act, 1999, § 103.

7. Trade Marks Act, 1999, § 114.

8. Christian Louboutin SAS v. Abubaker & Ors., (2018) 76 PTC 12 (Del.).

9. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3.

10. Consumer Protection Act, 2019, § 2(28).

11. Advertising Standards Council of India (ASCI), Guidelines for Influencer Advertising in Digital Media, 2021.

12. Central Consumer Protection Authority (CCPA), Guidelines for Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022.

13. Trade Marks Act, 1999, § 30.

14. Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd., (2014) 58 PTC 391 (Del.).

15. Amway India Enterprises Pvt. Ltd. v. 1MG Technologies Pvt. Ltd., CS(COMM) 122/2019 (Del. HC).

16. Hindustan Unilever Ltd. v. Reckitt Benckiser India Ltd., (2014) 58 PTC 391 (Del.).

17. Christian Louboutin SAS v. Abubaker & Ors., (2018) 76 PTC 12 (Del.).

18. Trade Marks Act, 1999, § 134.

19. Trade Marks Act, 1999, § 135.