Endorsement

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Introduction

Endorsement — the use of a public figure’s persona (name, likeness, voice, image, or reputation) to promote a product or service — is a commercial fulcrum of modern Indian marketing. For lawyers advising brands, agencies or celebrities, the term is more than marketing jargon: it engages contract law, intellectual property, consumer protection, publicity/privacy rights, advertising self-regulation, and regulatory enforcement by the Central Consumer Protection Authority (CCPA). Practically, endorsement disputes arise as contract breaches, misleading-advertisement claims, passing‑off/IP infringement, privacy/publicity claims and occasionally criminal complaints (defamation/cheating). This article synthesises the governing law, everyday courtroom and advisory applications, key authority, and tactical advice for practitioners.

Core Legal Framework

Primary statutes and provisions you will rely on in endorsement matters:

Note on personality/right of publicity: India has no codified “right of publicity.” Instead, claims are made under privacy/dignity (Article 21 jurisprudence), passing‑off/trademark, contractual rights and sometimes under tort principles recognized by courts.

Practical Application and Nuances

How the concept of endorsement translates into day‑to‑day litigation, advisory work and regulatory enforcement.

  1. What an endorsement dispute typically looks like
  2. Contractual: celebrity fails to deliver agreed posts; agency uses image beyond license; non‑payment of fees.
  3. Consumer protection: advertisement featuring a celebrity makes a health/safety/efficacy claim that is unsubstantiated → CCPA/consumer complaints.
  4. IP/Passing off: third party uses a celebrity’s persona to imply association with brand without authorisation.

  5. Privacy/publicity: unauthorised commercial exploitation of a celebrity’s image or life‑story.

  6. Elements and evidence in common pleadings

  7. For breach of endorsement contract:
    • The written contract (and its annexures: creative brief, release forms, usage licence).
    • Email/WhatsApp approvals, storyboard/script approvals, invoices and bank remittances.
    • Evidence of scope (territory, media, duration), exclusivity clauses, termination triggers, and liquidated damages.
  8. For misleading advertisement (before CCPA/consumer fora):
    • The advertisement (video, print, social media) in exact form and timestamps/screenshots.
    • Media buy records (where and when ad ran; impressions).
    • Product test reports, clinical trials, regulatory approvals, lab certificates relied upon (or lack thereof).
    • Consumer complaints, adverse event reports, sales figures post‑ad (to show reliance/damage).
    • Endorser’s communications with brand/agency about claims and approvals.
  9. For passing‑off/IP claims:
    • Evidence of claimant’s reputation among the relevant class.
    • Instances of confusion in the market, sales loss or dilution.
    • Evidence of unauthorised commercial use of image/mark and communications instructing or authorising use.

  10. For privacy/publicity claims:

    • Evidence of non‑consensual commercial exploitation; internal emails showing commercial intent; public reaction; any financial accounting underpinning the commercial use.

  11. Standard defences and how to rebut them

  12. “I relied on the advertiser’s/agency’s materials” — commercial endorsers often plead reliance; rebut with contract clause allocating warranties/indemnity to advertiser, or with evidence that the endorser had reasonable opportunity for due diligence.
  13. “Advertisement was mere puffery” — distinguish between non‑actionable puff (e.g., “best taste”) and specific measurable claims (“lose 10 kg in 2 weeks”) which are actionable.

  14. “Intermediary immunity” (platforms) — may shield platforms under s.79 IT Act if they comply with rules, but not the advertiser/endorser.

  15. Regulatory mechanics before CCPA and ASCI

  16. ASCI complaints are swift; decisions are published and compliance is expected fairly quickly. ASCI can recommend corrective action and pull‑downs.
  17. CCPA can issue cease‑and‑desist, safety notices, recall orders, and penal actions under the Consumer Protection Act. Importantly, CCPA has publicly held endorsers (including celebrities) accountable where claims are misleading.
  18. Remedies available: ad takedown, corrective advertising, refunds/compensation to consumers, penalties, and injunctions.

Concrete examples (typical fact patterns and response)
– Health supplement with celebrity claiming “clinically proven to cure X”:
– Plaintiff/complainant (consumer/competitor/CCPA) will demand clinical trial data, government registration (if required), and lab reports.
– Defence by retailer/celebrity: produce lab reports, expert affidavits and disavow broad claims; but where data lacking, expect CCPA/ASCI action and potential damages.
– Celebrity license exceeded (brand uses celebrity image on unrelated merchandise after contract expiry):
– Injunction to stop manufacture and sale; accounting for profits; damages; contractual damages per liquidated damages clause.
– Social‑media influencer hides consideration:
– ASCI and CCPA require disclosure of paid partnerships. Failure to disclose can be evidence of misleading practice.

Landmark Judgments

A few Supreme Court authorities that shape the doctrine around endorsements (privacy, personality, passing off):

  • K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (Supreme Court)

  • Principle: constitutional protection for privacy. Practical relevance: unauthorised commercial exploitation of an individual’s image or private data can engage Article 21 protections; courts have used privacy reasoning to protect personal autonomy and dignity against invasive commercial uses.

  • R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632 (Supreme Court)

  • Principle: contentions on right to privacy and freedom of speech. Practical relevance: balances freedom of expression and privacy/dignity; therefore non‑consensual commercial use of aspects of a person’s life may be injuncted.

  • Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., (2001) 5 SCC 73 (Supreme Court)

  • Principle: detailed exposition on “likelihood of deception/confusion” and the tests for passing off. Practical relevance in endorsements: when a celebrity’s persona or name is used in a way that causes confusion about association or sponsorship, principles of passing‑off/trademark law will apply.

Note: courts increasingly rely on these principles, ASCI precedents and CCPA orders in endorsement disputes. The CCPA’s Guidelines (2022) and subsequent enforcement orders have practical bite even where statutory law on “right of publicity” is not settled.

Strategic Considerations for Practitioners

Advice for drafting, litigating and advising clients on endorsements.

  1. Drafting and transactional practice — the essentials
  2. Clear scope of license: media (TV/print/digital/OOH), territory, term, languages, creative approvals.
  3. Express approvals mechanism: require sign‑off on scripts, storyboards, final cut; retain audit trail (emails/approvals).
  4. Warranty and indemnity clauses:
    • Advertiser warrants truthfulness/compliance of claims.
    • Endorser warrants availability, exclusivity (if any), and absence of conflicts (e.g., does not endorse competing products).
    • Reverse indemnity where possible (advertiser indemnifies endorser for regulatory claims arising from product safety/efficacy where claims were advertiser/manufacturer responsibility).
  5. Compliance clause: express obligation to comply with ASCI Code, CCPA guidelines, statutory requirements and to make disclosures of paid nature.
  6. Morality clause and termination for reputational risk: define “moral turpitude” triggers and suspension rights (esp. for long campaigns).
  7. IP ownership/licence clarity: who owns creative deliverables, photographer’s moral rights, sublicence rights to the brand, merchandising rights.
  8. Payment structure and escrow/retention: consider retaining part of fee pending campaign completion or indemnity period.
  9. Audit, record keeping and right to remove: audit rights to check claims supported by evidence; right to suspend dissemination if risk detected.

  10. Dispute resolution and interim relief: seat, arbitration vs courts, injunctive relief carve‑outs, emergency jurisdiction clause.

  11. Pre‑campaign compliance checklist for in‑house counsel

  12. Verify scientific/technical claims with expert opinion and documentary evidence.
  13. Ensure regulatory approvals (FSSAI, CDSCO etc.) where product requires.
  14. ASCI pre‑check for celebrity claims; ensure influencer disclosures on social media (e.g., #ad).

  15. Ensure platforms have takedown notice ready and compliant with IT rules.

  16. Litigation strategy

  17. Early evidence preservation: send legal notices for takedown, apply for interim injunctions (preserve broadcasts, seize inventory if necessary).
  18. Before courts/CCPA, focus on prima facie deceptive claim: produce documents showing consumer reliance and harm. For celebrities, probe whether they exercised due diligence and whether contract allocated responsibility.
  19. Use interlocutory relief to stop campaign immediately; damages/accounting is often secondary but commercially important.

  20. In IP/passing‑off suits, emphasise reputation surveys, consumer confusion instances and use of mark/image in commerce.

  21. Common pitfalls to avoid

  22. Poorly drafted scope of license leading to overreach and future disputes.
  23. Reliance solely on oral approvals; absence of a final cut approval process.
  24. Not addressing social media influencer mechanics (reposts, comped goods, affiliate links).
  25. Under‑insuring against product liability/regulatory risk.
  26. Ignoring ASCI and CCPA self‑regulatory pathways — early engagement can avoid punitive orders.

Conclusion

Endorsement law in India sits at the intersection of contract, consumer protection, IP and privacy. For practitioners the work is concrete and documentary: negotiate tight contracts, insist on auditable approvals, demand warranties and indemnities from advertisers/manufacturers for product claims, and prepare to defend or attack on the twin axes of misleading representation (CCPA/ASCI/consumer fora) and unauthorised commercial exploitation (contract/IP/passing‑off/privacy). Courts have recognised privacy and personality interests and developed passing‑off doctrine to redress misuse; meanwhile the CCPA and ASCI have increased regulatory pressure on advertisers and endorsers alike. The immediate, practical takeaway: prevention through precise contract terms, pre‑campaign compliance and robust documentary records is vastly more effective than litigation after a damaging campaign launch.