TOI Accuses Guerrilla Advertisers of Violating its IP Rights

In an interesting development, the Times of India (“TOI”) recently issued a warning to guerrilla advertisers, who use the TOI’s newspapers for engaging in illegal insert advertising, about the negative legal ramifications that could result from this unfair trade practice.

Noting that such advertisers are perceived by the public at large as “fake” and “fly by night” brands, the warning states that this type of surreptitious advertising reflects very poorly on the brand in question, indicating its tendency to cut corners.

Pertinently, this is not the first time that TOI has expressed serious concerns about the use of unauthorized inserts— in a 2005 article, it went so far as to describe them as a “ticking time-bomb.”

Interestingly, however, while the 2005 warning focuses on the ways in which these inserts could violate a large set of media laws and create unnecessary legal hassles for editors and publishers, the recent warning views this problem from the vantage point of IP infringement.

Accusing insert advertisers of misusing the “protected intellectual Property of the Times Group”, the warning states that the insertion of these unauthorized inserts amounts to an undue invasion of the private space that belongs to the Times of India.

Although the warning does not explain, with any degree of specificity, how the inserts infringe TOI’s IP rights, it does accuse the advertisers of trying to obtain an illegal advantage by using the TOI’s legally protected masthead in furtherance of their commercial objectives.

While no one would cavil at the proposition that the adoption of such clandestine methods by advertisers is condemnable, it isn’t clear what precise legal remedies are open to TOI to clamp down on this practice.

For starters, India does not have a single advertising law – the country’s rapidly burgeoning advertising industry is regulated by a large body of legal provisions and principles embodied in several key general laws. Therefore, TOI would be hard pressed to obtain a concrete and tangible legal remedy either against the advertisers who design these inserts or the hawkers because of whose complicity such inserts find their way into our morning papers.

That being said, insofar as TOI’s claim about the infringement of its intellectual property rights is concerned, a closer scrutiny of the objects underpinning the use of newspaper inserts as an instrument of advertising reveals that the claim carries substantial weight.

More specifically, it would be safe to state, without any fear of contradiction, that these inserts are designed to serve three main purposes.

First, they encash the reputation and goodwill of the papers in which they appear, tapping into the huge readership and popularity that these papers enjoy.

Second, by making it appear that the newspaper agency and advertiser are in a commercial relationship, these inserts are likely to be widely perceived as a tacit endorsement of the product or service being advertised by the concerned newspaper agency.

Finally, they help establish a nexus/linkage between the newspaper and the insert in the mind of readers, thereby lending greater credence and respectability to the latter which it would otherwise lack.

On closer scrutiny, it becomes clear that conscious and deliberate actions of insert advertisers, that are designed to deceive newspaper readers and thereby further these 3 objects, could possibly violate the exclusive trademark rights of newspaper publishers and give rise to a claim for passing off or dilution.

While TOI may be able to mount a successful legal challenge against these guerrilla advertisers, this warning also raises a deeper question about the reasons responsible for the rapid rise in illegal advertising.

As this article notes, “Just as piracy is the market’s answer to overpricing, clandestine inserts are the advertiser’s answer to unaffordable advertising costs.”

Therefore, while it is all very well for TOI to accuse these advertisers of engaging in unfair trade practices, it cannot lose sight of the fact that it finds itself in this situation in large part because of its failure to keep advertising costs under check, coupled with the fact that it enjoys a disproportionate market share in the print media industry.

Framing the debate in IP infringement terms certainly provides TOI the moral high ground. However, it does not get us any closer to finding concrete ways of balancing two competing interests: Protecting and upholding TOI’s right to ensure that its name is not associated with any brand without its consent and providing advertisers, who wish to operate within the framework of the law, an affordable pathway to leverage the power of the print media to promote their brand.
These seemingly incompatible interests can be reconciled only if TOI recognizes the importance of overhauling its advertising policies to make them more pragmatic and transparent.

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