The Legality of Surrogate Advertisement, and Its Infringements with Respect to Trademarks

Abstract

Surrogate advertising is a contentious marketing strategy whereby companies promote restricted products, such as alcohol and tobacco, by advertising permissible goods like mineral water or soda that bear similar brand identities. This practice raises legal and ethical concerns as it often circumvents public health regulations designed to limit the promotion of potentially harmful products. In India, surrogate advertising is regulated by stringent laws, including the Cable Television Networks Act, 1995, the Cigarettes and Other Tobacco Products Act, 2003, and the Advertising Standards Council of India (ASCI) Code. These regulations aim to restrict surrogate promotions that mislead consumers and blur distinctions between prohibited products and their associated brand extensions. This Article explores the legal framework surrounding surrogate advertising in India, highlighting how major brands like Kingfisher have effectively used surrogate products to maintain visibility and brand identity despite advertising restrictions and how the trademark has been infringed . It delves into the conflict between brand rights and public welfare, examining whether trademark holders have a positive right to freely use their trademarks in advertising or whether such rights are inherently limited by public policy considerations. By analyzing statutory guidelines, case law, and global standards such as the TRIPS Agreement, this study evaluates the balance between protecting public interests and preserving trademark rights in advertising practices, ultimately offering insights into potential policy reforms for mitigating the impact of surrogate advertising on consumer perception and public health.