Territorial Trademark Rights in a Non-Territorial Digital Marketplace: Challenges of Cross-Border Social Media use under Indian Law

Historically, trademark law has been applied in geographically delimited markets in which usage, reputation and implementation of trademarks could be identified. Nevertheless, the emergence of social media platforms, influencer marketing and specific online advertising has dramatically broken this territorial paradigm. Trademarks have become a common practice in the digital space that goes beyond national borders, making it possible to exploit the brand without physical penetration of the market. The law of Indian trademarks, the main law being the Trade Marks Act, 1999, is still based on the territory premise and does not have a legal framework that would regulate the Indian consumer-based trademark use initially originated outside India. The paper reflects on the failure by the Indian trademark law to regulate cross-border digital trademark-use by following a critical approach on the failure of such regulations in the Indian trademark law, specifically under social media-driven practices like hashtags, tagging, influencer recommendations, and digital advertising. It states that the current statutory provisions, such as Sections 2(2)(b), 29(4) and 29(29) and 134 of the Trade Marks Act do not work well in establishing the situation when online actions is considered the use in the course of trade in the context of India. Using the case law of India, one of them being Marico ltd v Abhijeet Bhansali, Toyota Jidosha Kabushiki v. Louis Vuitton Malletier v. Prius Auto Industries Ltd., and. The paper implies the inefficacy of the existing judicial approaches, which is illustrated by Future time Technology India Pvt. Ltd. Based on comparative jurisprudence about the European Union, the United States, and the United Kingdom, the paper suggests the implementation of statutory digital-use doctrine to rely on a targeting test and an ordered system of influencer-liability. It draws the conclusion that, unless so reformed, territorial trademark rights will be rendering ineffective in a non-territorial digital marketplace.