BRANDS AS THE REAL STARS: PRODUCT PLACEMENT REGULATION IN INDIAN ENTERTAINMENT LAW

-       Mahek Sangwan[1] & Aadit Seth[2]

I.       ABSTRACT

With the growing emergence of OTT platforms and shows gaining a worldwide audience, it becomes a dream come true for advertisers to target and engage their customer base. However, the advertisements are not always flashy and loud, some are so subtle that they are often a part of the script and very strategically placed to leave an impression in the minds of the audience. This particular commercialisation of art, i.e. product placement is yet to be specifically mentioned in legislative frameworks. There are a few questions that arise- first, how do these implicit advertisement techniques be regulated under current legislations, second, where does one draw a distinction between the original artwork and the creative aspect of the advertisement itself. The paper lays emphasis on suggesting framework changes keeping in focus the fair use of commercial brands. A mark of a good product placement is when the audience fails to realise the implicit advertisement. This is where the need for disclaimer and framework arises.

Keywords: OTT platforms, product placement, trademark, copyright, advertisement, de minimis, implicit.

II.     INTRODUCTION

“Cinema is a matter of what’s in the frame and what’s not.”

-       Martin Scorsese

Product Placement is the oldest trick in the Indian show business, way before Over-The-Top (OTT) platforms were introduced. Imagine it is 1973, you are watching the movie “Bobby”, the hero elopes with the love of his life on the ever-so stylish Rajdoot Motorcycle. Later, that specific model is named Bobby, and over 1.5 million units are sold.^[3] Fast-forward a few years, Horlicks rolled out the magic Ra-One mug,^[4] which was a superhit amongst growing boys who idolized the character played by actor Shahrukh Khan.  Even today, the viral OTT sensation, The Summer I Turned Pretty has led to successful product placement^[5] of lifestyle brands like Coach, Catbird, and Stanley to an aesthetics-chasing audience.

The audience carries out its job well as it successfully attaches sentimental value to brands. There does not have to be an explicit mention of the product; a mere presence in the background or becoming a plot device or symbol fulfils the purpose. It is subtle yet very powerful and deals with testing the recall value in the minds of the consumer. It relies on the influence of the show and how well the character carries the product.  In absence of a clear regulation, product placement allows companies to exploit audiences by bypassing traditional advertising disclosures.

OTT platforms like Netflix, Prime Video, Disney Hotstar, etc., are the ideal platforms to be studied since they successfully recommend the most appropriate content to subscribers based on cloud and big data. By the end of 2025, the OTT video market is projected to reach USD 4.49 billion,^[6] which is a product advertisement paradise. Seasoned audiences and critics are first to notice the ‘intentional’ screentime of a particular brand or when the plot takes a hit just for the sake of branding , a poorly executed or overly pervasive product placement strategy that lacks deep psychological studies. The Netflix hit, Stranger Things, was called out for constant vintage product placement relying on the nostalgic sentiments of the 80s. It turned negative when nostalgia brands were 'shoved' in a show heavily relying on story.

The science of product placement rests on three layers. First, product placement improves the retention of a particular brand or product advertisement owing to its subliminal effect which stays in the minds of the consumers for a long time yet they are oblivious of it. Second, the recall value decreases when product placement is repeated, and third, it is observed that persuasion knowledge is independent of the frequency of placement.^[7] Therefore, science plus creativity equals product placement. When audiences repeatedly see certain brands integrated naturally into stories or characters they admire, they begin to associate positive emotions. They believe their choices are independent creating an uneven power dynamics between marketers and consumers. The lack of transparency in commercial messaging highlight the urgent need for comprehensive legal regulation that addresses both the psychological impact on consumers and the economic implications for fair market competition. With the ever-growing landscape of OTT in India accompanied with growing product placement calls for a legal regulation.

III.   COURTROOM CURIOSITY: ANALYSING THE JUDICIAL STANCE

Globally, the concept of product placement was first brought into play in the late 19th century, when “sunlight soap” made its appearance in Washing Days in Switzerland.^[8] Both nationally and internationally, for a long while after its introduction, product placement was unregulated. The EU was the first to attempt to solve this issue. It ambitiously issued the original Television without Frontiers Directive (TwFD), attempting to distinguish and explain the two core principles of media law in relation to product placement, namely, the separation of commercial content from editorial content, and the identification of advertising. Its implementation, however, was the core issue. It led to multiple discrepancies between different European member states. Some implemented it fully, some partially, and some, like Germany, banned product placement altogether. The irony was that the European audiences viewed American television, which did not provide for any such legislation, barring the entire purpose of the Directive.^[9]

Indian statutes encounter similar issues. There is no provision for the concept of product placement in the law. Judicial precedents shed significant light on the interpretation of product placement in a restricted sense, underscoring the dilemma presented by the lacuna in law. Sections 29(4)^[10] and 29(8)^[11] of the Trade Marks Act, 1999 have been used till date to deal with product placement in OTT. The provisions only restrict when the use of a mark is “detrimental to its distinctive character or reputation”, which ignores permissions and the possibility of other infringements such as copyright misuses. This narrow statutory interpretation creates enforcement challenges and legal uncertainties for content creators and brand owners alike. Judicial reasoning sheds significant light on the interpretation of product placement in a restricted sense.

In the case of Bata India v. Jolly LLB 2 Producers,^[12] the “Bata” trademark was associated as a shoemaker making shoes for only the lower strata of the society. This damaged Bata’s reputation. The Court’s approach, while understandable in protecting brand reputation, demonstrates the limitations of applying trademark law in isolation to complex product placement scenarios involving artistic expression and commercial speech. The Court at the time restricted it only to trademark tarnishment and awarded the plaintiff damages in accordance with section 29(8), dealing with misuse of the trademark’s individual reputation. Similarly, in the case of Reckitt & Colman v. M.P. Ramachandran,^[13] the Court laid down certain criteria as non-negotiable for commercial disparagement. The primary of those criteria was negative association restrictions. This portrays depicting products or brands negatively, understandable without consent, as being actionable. In this medium, the courts primarily focussed on the trademark aspect, again aiming at a very narrow approach, which might not be the most practicable. A clear analysis of the dilemma shall lead towards a solution that balances both the legal and the reputational aspect.

IV.   WHAT’S MINE IS YOURS – DEMARCATING CREATIVITY AND COMMERCE

When it comes to law for advertisements, copyrights, or trademarks, there is a clear road map- until you hit a three-way crossroad where the GPS starts speaking in riddles. The laws do not directly address product placement. There are three main reasons. First, the provisions under the Trademark Act protect a brand’s name or reputation. They make sure that the connotations associated with the brand are neutral or positive in nature. In the movie Pearl Harbour, a gory representation was made where Coke bottles were directly used to store pumped blood. Such gory representations associated the iconic brand with images of injury and visceral medical functions rather than reenforcing a refreshing image. Therefore, the Trademark Act limits itself to the brand’s goodwill. Second, the current Copyright Act covers creative work distinctly; it nowhere acknowledges the creativity of advertisements ‘within’ the artwork. For instance, in the 1955 hit Shree 420, a classic example of how Coca-Cola boards were placed right in paradox with poverty-scapes of the common man worsened by capitalism. Product placement does not traditionally come under the terms ‘copy’ or ‘reproduction’ of a work, therefore providing a sleek gap for product placement to fall under. Third, laws regulating advertisements such as the Consumer Protection Act, 2019, and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, along with e-commerce regulations under the Consumer Protection (E-Commerce) Rules, 2020, deal with overt advertisements and disclosure requirements, but do not have express provisions for the implied or subtle nature of product placement that blurs the line between entertainment and commercial content.

This outlines the core issue, that there exists no clear provision or precedent for implicit product placement in the legislative framework. While extreme cases are easy to determine, such judgments are subjective in nature. There are numerous factors that can be used to help assess the integrity of the placement. For instance, the source of the placement. If the placement has naturally evolved from the script, then it is less likely that the placement will undermine the integrity of the film. To proceed towards a solution, one must understand the distinction between the principle of fair dealing and commercial purpose with an emphasis on ‘implicit endorsement’.

a)    Why the Copyright Act?

Fair dealing, commonly known as fair use under the U.S. Copyright Law, has been laid down in Section 52 of the Indian Copyright Act, 1957. Fair dealing provides for a legal right to reproduce, copy, or use the author’s copyrighted content for purposes laid down in the section. In University of Oxford v. Rameshwari Photocopy Services & Ors.,^[14] it was held that “the fairness in the use can be determined on the touchstone of ‘extent justified by the purpose’”. A commercial purpose, such as that of an advertisement, albeit an implicit one, lacks a justified purpose. Thus, a fine line lies between the artistic expression of an OTT product and the commercial use of intellectual property within a creative work. To elaborate, the creator’s creativity includes the script, direction, and screenplay. However, what is often missed is that a brand is placed ‘intentionally’ with a fee, weaving it into the creative work. For instance, many movies show the characters using an iPhone with no promotional intent, differing from deliberate product placement in an OTT creator’s art. Right to artistic expression, while not explicitly enumerated as a fundamental right, is recognized as an essential component of freedom of speech and expression under Article 19(1)(a) of the Constitution.^[15]

The application of copyright and trademark law in tandem would involve an ex ante analysis where courts first examine trademark infringement under Sections 29(4) and 29(8), followed by an ex post copyright analysis applying de minimis principles to determine if the use constitutes fair dealing or artistic expression, ensuring comprehensive protection while preventing commercial exploitation of creative works. Trademark, advertisement and related laws lack such parallel concepts, making the Copyright Act the appropriate choice that captures this critical distinction. Absence of clarity on this issue harms on two levels, first, it could compromise the artistic integrity of the show and lead to narrow judgements. Second, a missed approach could create a chilling effect for creators to use brands commercially or to stifle brand usage for realism.

V.     UNDERSTANDING THE LEGAL PARADOX OF PRODUCT PLACEMENT

a)    De Minimis Doctrine

The de minimis doctrine in copyright law presents a compelling legal framework that can significantly complement trademark law’s restrictive approach to product placement in Indian films and OTT platforms. This doctrine, which follows the maxim “de minimis non curat lex” (the law does not concern itself with trifles), offers a nuanced approach to protecting artistic expression while maintaining brand rights when products appear fleetingly and incidentally in entertainment content.

The Indian judiciary’s approach to the de minimis doctrine has evolved from initial rejection to progressive acceptance. The Delhi High Court in Super Cassette Industries v. Chintamani Rao,^[16] initially rejected the de minimis defence, stating that since Indian copyright law provides specific exceptions under Section 52, any doctrine not explicitly mentioned cannot constitute a valid defence. However, this restrictive approach was overturned in India TV Independent News Service v. Yashraj Films,^[17] where the Division Bench recognized that “fractional usage of a song in small amounts does not comprise a copyright infringement but is rather the case of de minimis”. The court established that the de minimis principle applies when copying occurs to such an insignificant extent that it falls short of the qualitative and quantitative threshold necessary to constitute copyright infringement.

Therefore, copyright law’s de minimis doctrine can effectively complement trademark law’s restrictive approach by creating a dual-analysis framework – the Primary Analysis, and the Secondary Analysis. Through the Primary Analysis (Trademark Infringement), Courts first examine whether product placement creates consumer confusion, trademark dilution, or commercial disparagement under Sections 29(4) and 29(8) of the Trademarks Act, 1999. Additionally, Secondary Analysis (Copyright De Minimis)provides that if trademark infringement is established, courts can apply copyright law’s de minimis principles to evaluate whether the use is trivial enough to warrant protection under artistic expression grounds.

This proposed dual-analysis framework shall be applied ex post facto, i.e., operating sequentially. First, the primary analysis shall determine if the content causes commercial harm as provided under Section 29(4) and 29(8). Second, if infringement is found, the secondary analysis shall offer the de minimis doctrine as a defence. This offers a sophisticated legal tool to complement trademark law’s restrictive approach to product placement in Indian entertainment content. By focusing on whether product appearances are trivial, incidental, and serve legitimate artistic purposes, this framework creates balanced protection that respects both brand owners’ commercial interests and creators’ constitutional rights to artistic expression.^[18]

b)    Through-the-Plot Use

The second possible explanation for using copyright law can be “Through-the-Plot” use. Through-the-plot product placement represents the most legally and ethically problematic form of brand integration in entertainment content. This creates a fundamental legal challenge – commercial advertising disguised as artistic expression that evades traditional advertising regulations while potentially deceiving consumers about the commercial nature of the content they are consuming. For example, the Rajdoot motorcycle in Bobby, the motorcycle was not merely transportation but a symbol of youth, rebellion, and romantic freedom that drove key plot developments and character relationships. The brand became inseparable from the film’s cultural impact. Viewers believe they are consuming entertainment content when they are actually viewing undisclosed commercial advertising. Unlike traditional ads with clear commercial intent, through-the-plot placement deliberately obscures its promotional nature.

However, effective regulation for this requires integrated approaches combining copyright analysis, commercial speech evaluation, and consumer protection enforcement. This framework can preserve legitimate artistic freedom while ensuring transparent commercial communication and fair market competition. The goal is not restricting creative expression but ensuring that commercial promotion is clearly identified as such, allowing consumers to make informed choices about their entertainment consumption and commercial exposure.

The success of this framework depends on judicial willingness to look beyond surface artistic claims to examine the underlying commercial purposes driving content creation. When brands become integral to storytelling, courts must determine whether this reflects authentic artistic choice or commercial influence that compromises both creative integrity and consumer autonomy.

VI.   CONCLUSION

Product placement is an integral yet unregulated part of India’s OTT platforms. It does two things- firstly, enhances the storytelling and secondly, funds creative work. The implicit nature of such advertisement blurs the line between art and advertisement. The existing frameworks address these concerns in fragments and leave grey areas. Therefore, there is a need to explicitly recognise product placement to promote transparency without curbing creativity. A dual-analysis approach to combine trademark infringement review with the copyright de minimis doctrine can guide in creating a distinction between artistic use and covert commercial promotion.

Finally, treating subliminal persuasion as a form of consumer harm aligns with global principles of ethical advertising. The objective is not to restrict artistic freedom in any sense, but promote transparency, accountability and consumer trust. In doing so, Indian legal frameworks can turn product placement from a grey area to a balanced and responsible creative practice.

[1] Mahek Sangwan is a student at Rajiv Gandhi National University of Law, Punjab.

[2] Aadit Seth is a student at Rajiv Gandhi National University of Law, Punjab.

[3] Ajeesh Kuttan, Vintage Rajdoot ‘Bobby’ GTS: A Closer Look At The Cult Bollywood Movie Bike, CarToq (Sept. 10, 2025), https://www.cartoq.com/rajdoot-bobby-motorcycle-youtuber-bikewithgirl-spin/.

[4] Afaqs, Horlicks and Ra.One announces a ‘Taller Stronger Sharper’ tie-up, Afaqs! (Sept. 13 2025), https://www.afaqs.com/company-briefs/51801_horlicks-and-raone-announces-a-taller-stronger-sharper-tie-up.

[5] Lola Offenback, Brands are meeting Gen Z where they are: watching ‘The Summer I Turned Pretty’, Campaign (Sept. 12, 2025), https://www.campaignlive.com/article/brands-meeting-gen-z-are-watching-the-summer-i-turned-pretty/1927851.

[6] Dalton Norman, The 10 Worst Product Placements in Movies & TV, According To Reddit, Screen Rant (Sept. 10, 2023), https://screenrant.com/worst-product-placements-movies-tv-reddit/.

[7] Alain D’Astous and Francis Chartier, A Study of Factors Affecting Consumer Evaluations and Memory of Product Placements in Movies, 22 Journal of Current Issues and Research in Advertising 31, (2012); Jean-Marc Lehu and Etienne Bressoud, Recall of Brand Placement in Movies: Interactions between Prominence and Plot Connection in Real Conditions of Exposure, 24  Recherche et Applications en Marketing 7, (2009); Bryan Gibson and Christopher Redker, Conscious and Nonconscious Effects of Product Placement: Brand Recall and Active Persuasion Knowledge Affect Brand Attitudes and Brand Self-Identification Differently, 3 Pyschology of Popular Media Culture 19, (2013); Fanny Fong Yee Chan, Product placement and its effectiveness: A systematic review and propositions for future research, 12 The Marketing Review (2012); Jose, Jesus and Joaquin, Product Placement in Video Games: The Effect of Brand Familiarity and Repetition on Consumers’ Memory 38, Journal of Interactive Marketing 55, (2017).

[8] Gwendolen Powell, Brands with a Purpose, Unilever Archives (Sept. 13, 2025), https://archives-unilever.com/discover/stories/brands-with-a-purpose. 

[9] Joe Middleton, The Effectiveness of Audiovisual Regulation Inside the European Union: The Television without Frontiers Directive and Cultural Protectionism, 31 Denver Journal Of Intl. L. & Policy 607, (2003).

[10] Trade Marks Act, 1999, § 29(4), No. 47, Acts of Parliament, 1999 (India).

[11] Trade Marks Act, 1999, § 29(8), No. 47, Acts of Parliament, 1999 (India).

[12] Bata India v. Jolly LLB 2 Producers, 2017 SCC OnLine Del 1452.

[13]Reckitt & Colman v. M.P. Ramachandran, 1999 PTC (19) 741.

[14] University of Oxford v. Rameshwari Photocopy Services & Ors., 2016 SCC OnLine Del 6229.

[15] India Const. art. 19, cl. 1.

[16] Super Cassettes Industries Ltd. v. Chintamani Rao, (2011) SCC OnLine Del 4712.

[17] India TV Independent News Service (P) Ltd. v. Yashraj Films (P) Ltd., (2012) SCC OnLine Del 4298.

[18] What is the Freedom of Artistic Expression?, Nyaaya (Sept. 11, 2025), https://nyaaya.org/legal-explainer/what-is-the-freedom-of-artistic-expression/#:~:text=Article%2019(1)(a)%20of%20the%20Constitution%20of%20India,poets%2C%20painters%2C%20cartoonists%2C%20filmmakers%2C%20musicians%2C%20and%20actors(last%20visited,%20Sept.%2030,%202025).