Prithvi Shaw vs Swiggy and Freecharge: What this means for social media marketing in sports

Prithvi Shaw has been the toast of the cricket town since he became the youngest Indian to score a century on Test debut, during the first Test between India and West Indies in Rajkot earlier this month.

The 18-year-old batsman was praised all over Twitter after his feat, for his bold and aggressive strokeplay. He even became the subject of Indian dairy giant Amul’s pun-filled cartoon advertisement in the newspapers the following day, often considered as a mark that the subject has arrived on the big stage.

Normally, such adulation would be the reason for immense pride if you are associated with the athlete, but that was not the case with Shaw’s management company Baseline Ventures, which has sent cease-and-desist notices to e-commerce website FreeCharge, food aggregator app Swiggy and Yashodhara Hospital for their advertisements in social and traditional media congratulating the cricketer for his debut ton.

A cease-and-desist notice is a formal request for the recipient to stop what the sender thinks is unwelcome or illegal behaviour. According to Medianama, this is what Baseline’s notice to the two companies said:

“Our Client has absolute and exclusive right to fully market and monetize all commercial rights associated with the Player in all territories globally including without limitation, media and broadcasting rights (on all platforms like TV, Radio, internet, social media, multimedia, books and publications, outdoor advertising, print, mobile phones, digital etc), sponsorship and advertising rights, licensing and merchandising rights, gaming rights, media footage rights, apparel rights, website rights etc.

“It is absolutely clear from your advertisement that you are encashing the name and fame of the Player without any authorization from Our Client merely to cause unlawful gain to yourself and unlawful loss to Our Client.”

Baseline have demanded the three companies to take down their posts and pay Rs 1 crore to them in compensation. According to a report on Inc42, the notices have been sent in accordance with sections of the Trademark Act and and the Indian Penal Code for using a false property mark and counterfeiting a property mark.

Does Baseline have a case?

Flawed notice

Roshan Gopalakrishna, Counsel (Sports and Entertainment) at LawNK, does not think so. “I have not read the entire notice but from whatever has been reported there are lots of flaws in it,” he said. “The notice says the posts have violated the Trademarks Act, which is incorrect. There is no trademark here. A trademark is something like a logo. Unless Prithvi Shaw has his own personal brand, like Roger Federer’s ‘RF’ for example, it can’t come under a trademark law.”

An athlete’s management company has the right to commercialise his or her attributes and identification, like their name, image and voice. “By law, you cannot use anything that identifies the personality of the athlete but it also depends on what context you are using it in,” said Gopalakrishna.

“In this case, the brands haven’t used his name out of context in an ad. It was a newsworthy event of that day. They are also adding to his reputation on that day. I think Baseline will have a very tough case in proving that they have actually suffered monetary losses,” he added.

Tuhin Mishra, managing director and co-founder of Baseline Ventures, however, disagrees. He feels that the three companies have tried to benefit from his client’s achievement. “It has nothing to do with a congratulatory message,” he said. “It has more to do with pushing your product or brand value with the achievement. The fact of the matter is Prithvi was never ‘super charged’ because of Freecharge. They have pushed their product, which is not right.”

Mishra even termed what the three companies did as “ambush marketing”, even though Shaw does not endorse any of the trio’s competitors. “You are taking away his right to earn an extra buck with their competitors,” he said. “Hypothetically, if their competitors were considering to sign up Prithvi, they might back off seeing those ads. It becomes my duty as his management company to tell people that he is not endorsing those brands.”

Ambush marketing or not, global intellectual property specialist Nagaraja B Subbarao finds himself siding with Baseline’s argument. “The three companies were trying to compare their services to the achievements of Prithvi Shaw,” he said. “Technically, congratulating a player is not vendetta based, but they have gone beyond their scope with their posts.”

Subbarao, however, does not believe the matter will go to court. “I think it will be settled with an apology or some other compensation. They might just get an injunction saying Swiggy and Freecharge should not engage in such activities in the future. I don’t see Rs 1 crore being exchanged.”

Posturing?

A sports marketing professional, who requested anonymity as he was not authorised to speak with the media, said that Baseline sending the notices was just a bit of posturing to put themselves out there in the market. Shaw is a new client, who was signed up by the management company in November last year. The cricketer has four endorsements so far: MRF, Nike, Protinex and Indian Oil.

“Baseline manage other athletes across sports but they never created an issue about such things before,” the sports marketing professional said. One of Baseline’s other clients is PV Sindhu, an Olympic silver medallist and one of the highest-earning women athletes in the world. She has been with Baseline since 2016.

“You can imagine someone like Sindhu having been the subject of many such posts on social media and otherwise,” the sports marketing professional added. “Why did Baseline not have a problem then?” When the question was put forward to Mishra, he said, “There are brands who have done it as a one-off case but what happened with Prithvi was just too much. We had to take action.”

Gopalakrishna and Subbarao both believe Baseline have set a trend by sending these legal notices; brands will have to be more careful now with what they post. “In terms of informing people that they are keeping an eye out, it is a very good strategy,” Gopalakrishna said.

Does this spell doom for everyone’s beloved Amul ads, which have been delighting people for over five decades? The sports marketing professional quoted earlier does not think Amul’s fans need to be worried. “Amul has received lots of notices before, mostly for defamation, and they get thrown out. Nothing ever happens to them,” he said.

Mishra confirmed that Baseline had not sent a notice to Amul but added that he was not thrilled with their ad on Shaw, which included a pun on his first name Prithvi, meaning earth. “Amul has been doing it for years and getting away with it,” he said.

“They have been pretty creative, they play around with the words and get away with it. The problem is in our country the intellectual property rights laws are not that strong. They have used words like “Prithvi ka favourite makhan” and “Shaw bash”. Legally, if you go after them, they will say, ‘We did not mean to say it is Prithvi’s favourite butter. We meant it’s the world’s favourite.’ But you know everything is implied,” he added.

Baseline Ventures are still waiting for the three companies to respond to the notices sent to them. On Saturday, Shaw scored an entertaining 70 off 53 balls against the West Indies in the second Test. It would have been interesting to see what would have happened on social media had he scored 30 more.