The Legal Gap No One Is Talking About
Abstract
The technology used for the creation of deepfake videos has become a serious threat to Trademark law and brand identity in India. These types of videos fraudulently use the faces of public figures, which has resulted in a 550% surge since 2019 of the cases of these videos being circulated, projecting losses of Rs.70,000 crore in 2024 alone. Section 29 of the Trademarks Act,1999 remains inadequate against the speed and scale of these types of deepfake advertising fraud videos. There is an urgent need for specific legal reforms within the intellectual property rights and advertising laws in order to combat synthetic identity theft before an irreversible damage to the reputation of people occurs.
When the Finance Minister Never Said It: India’s Deepfake Reality Check
In November 2024, a video of our Finance Minister, Nirmala Sitharaman was being circulated in the media promoting a government “income generating platform” wherein they urged the Indian citizens to invest Rs. 21,000 in the project with a guaranteed return of Rs.15 lakh in one month. But, in reality, there was no mention of an investment scheme by her. This was a deepfake video which was manipulated using AI and its feature of voice cloning. This was later clarified by RBI itself that no officials were involved in supporting such activities and that the video was fake.
The Double-Edged Nature of Deepfakes: Innovation and Misuse
“Deepfakes are digital forgeries so realistic they can convincingly mimic a person’s voice or likeness.” These types of videos are created by 2 types of users: first, who have a legitimate business and second are fraudsters. Users who have a legitimate business use these types of videos to cut down their production costs, meaning they could create campaigns and advertisements for their brands with minimum costs using simple AI tools. The second type of users who use these videos are a bit on the dangerous side as they are fraudsters who morph the faces of big celebrities and create an advertisement of their own. They create illegal websites and fool people to steal money from them. This is very troubling as there isn’t a meaningful barrier between the two, since technology is the same that is used by both and the output is nearly indistinguishable.
Why Deepfake Scams Are Rising Rapidly in India
In India, the cases of these types of videos being circulated has surged upto 550% since 2019, with losses being projected to be Rs.70,000 crore in 2024 alone. There have been several instances of big personalities like Ratan Tata being shown as giving investment advice, Priyanka Chopra’s voice being cloned in order to promote fake advertisement, Nayan Murthy being used in multiple videos, actors like Akshay Kumar and Rashmika Mandanna, and cricketers like Sachin Tendulkar and Virat Kohli, all have been featured in these types of videos. People in India fall for these types of videos due to millions of smartphone users with low AI literacy and them not being able to differentiate between what is fake and what is original.
Deepfakes and Trademark Harm: An Overlooked Connection
These cases which are described above are not just fraud but something that the Trademark law has been designed to protect- brand identity and goodwill. When such a video shows a personality like Ratan Tata endorsing an investment scheme or cloning the identity of a brand to sell counterfeit products, it does what is essentially prohibited by the Trademark law, which is misleading the general public about the origin of the goods and services, damaging the brands reputation. Section 29 of the Trade Marks Act,1999 primarily defines what trademark infringement is, covering all or any of the unauthorized use of a registered trademark which is deceptively similar, that may cause confusion in the minds of the people. Where there is an unregistered trademark of a brand, the common law remedy of passing off applies, meaning it requires a proof of goodwill and misrepresentation. Yet, these remedies do not apply to a country where a fake ad reaches millions of people even before it comes to the knowledge of the brand.
Are India’s Current Laws Equipped to Handle Deepfakes?
Trademarks Act,1999 was drafted decades before AI came into existence, way before it could clone or fabricate a face, so the Act’s primary purpose was to protect the registered trademarks against unauthorized commercial use. IT Act,2000 covers cybercrimes but contains no provision for deepfake-generated advertising fraud. So, at present, India does not have a dedicated legislation for these types of deepfake-generated advertising videos. The Delhi High Court through Anil Kapoor v. Simply Life India (2023), granted an omnibus injunction which restrained 16 entities and the people around the world from using Anil Kapoor’s name or image through any of the AI tools, face morphing or deepfakes for commercial purposes. The court since then has expanded its reasoning, observing that these rights aren’t restricted to big personalities alone, but to all the individuals, to protect their identities to be commercially exploited.
When Legal Remedies Move Slower Than Digital Harm
By the time a brand takes an injunction from the court, the fake ADs are already spread across the country, permanently taking place in people’s phones. This is the gap between the two, not a gap of awareness but of speed. The law takes weeks but these deepfake videos take hours to get circulated. It becomes very difficult to prove that the synthetic damage has caused real and measurable damage to a brand’s trademark, and especially for small brands who do not have a legal team or have registered trademarks, for them the recourse is almost theoretical. The Indian Courts have started to see this problem very clearly, but seeing it and solving it are two different things.
A Collective Challenge: Why Deepfake Awareness Matters for Everyone
India requires specific provisions for these deepfake videos in order to resolve this problem, provisions that are within Intellectual Property Rights and advertising law and not some borrowed interpretations of statutes that were written decades ago. The Trademarks Act needs to recognize this problem of synthetic identity theft. This is not only a legal problem that is waiting for the legislators to get acted upon. Every share of a deepfake endorsement amounts to compounding to the damage caused to the person’s reputation who is being used in the video. Brands, consumers and citizens, all have a role to play in this game, because today it is Nirmala Sitharaman’s voice advertising a scam, but tomorrow, it could be yours.
References:
UNESCO, ‘Deepfakes and the Crisis of Knowing’ (2023), [https://www.unesco.org/en/articles/deepfakes-and-crisis-knowing]
BusinessWorld, ‘India’s Deepfake Cases Up 550%; Losses May Hit Rs 70,000 Cr by 2024: Report’ (2024), [https://www.businessworld.in/article/indias-deepfake-cases-up-550-losses-may-hit-rs-70000-cr-by-2024-report-541202]
Top Indian News, ‘Year Ender 2024: 10 High-Profile Deep Fakes of Indian Celebrities That Shook the Internet’ (2024), [https://www.topindiannews.com/national/year-ender-2024-10-high-profile-deep-fakes-of-indian-celebrities-that-shook-internet-news-27416]
The Trade Marks Act, 1999
The Information Technology Act, 2000
Anil Kapoor v. Simply Life India & Ors (2023) CS(COMM) 652/2023