Ever mispronounced a word, only for it to unexpectedly gain attention? Something exactly like that took over the internet in a frenzy when a digital content creator's innocent slip had the whole nation suddenly very interested in a French pastry which had garnered an Indian name overnight. However, what was not anticipated by the netizens and the content creator himself was the clever marketing strategies of various brands over a simple viral language-learning mishap.
Ayush (@ishowayuu on Instagram), a content creator who often uploads split-screen reels where he guesses objects from pictures. In such a split-screen video, a misheard word turned "croissant" into "Prashant". This innocent reaction went viral on Instagram, garnering around 21.9 million views. An unexpected mispronunciation had the netizens hilariously engaged, and in no time, memes were created.
Meme culture has been an integral part of our lives, especially seen in the internet and social media savvy world. They are a source of entertainment for many – people use it to express themselves via images and videos in a clever and unserious manner, often added with the element of humour and satire. Connecting it with social media, we have a never-ending influx of memes on a daily basis.
The aftermath of the viral Prashant meme saw brands such as Britannia, Swiggy, Netflix, Philips and numerous bakeries in the nation involving themselves at the perfect time to market themselves while the meme is viral. Britannia took the step to temporarily rebrand their croissant Instagram page as 'Britannia.Prashant" and also temporarily changed the spelling on their Treat Croissant as Prashant. On the other hand, Swiggy cleverly used keyword mapping to allow its users to search for croissants with "Prashant", appealing to the general public with the caption, "Tum Prashant bologe, hum croissant samajh lenge." (You say Prashant, we will understand it as croissant.)1
While meme culture is meant to be engaging, is the use of the Prashant meme, and by connection other memes, by brands for their financial benefit permitted? And who owns the intellectual property over the meme?
Who owns the IP over the viral meme trend?
When something becomes popular, profitable opportunities often arise from it2. This applies for memes as well. Though the intention when a meme is shared is for fun, added with the nature of social media, you never know when it is the next viral sensation of social media. Virality often follows opportunity. When that happens, businesses and individuals try to leverage it for their benefit – often for visibility, engagement or even profit generation. Often this is done without regard to the rights of the owners of such memes.
A meme is an artefact that incorporates creative expression and perceptions.3 As it involves some amount of creativity4, they are eligible for copyright protection as soon as the work is completed. While memes/slangs on their own are too weak to be protected, as 'copyright does not ordinarily protect names or short phrases by themselves'5. But combined with an expression original to the memer/creator, it has copyright protection attached to itself.
This applies to the Prashant meme as well. Memes can be of two types6: one created using already existing content, often created from copyrighted content such as movies. In such a case, the copyright may usually not lie with the memer. Another kind involves original creations – where the memer has created the meme from scratch. It involves his input, skill, creativity, etc. A meme doesn't necessarily have to be based on existing content or works.
The Prashant meme falls under the second category. The whole video content that includes his voice and expression is entirely Ayush's original creation and has not originated from pre-existing content that is usual with many memes being spread online. Copyright on his video can subsist7 as it falls under the category of 'cinematograph film' as defined under Section 2(f) of the Copyright Act, 1957 ("the Act"). Even if we consider that the video posted on Ayush's Instagram handle contains pictures of desserts, including croissants, and that it has copyright of its own, the images are not the substantial part of the video. Under Section 13(3)(a) of the Act, copyright shall not subsist in a cinematograph film if a substantial part of the film infringes the copyright in any other work. The copyright lies in the content of the video ('the expression')8, i.e., Ayush's voice, particularly the mispronunciation and humorous timing leading to "Prashant" as an alternative meaning to croissant; and not to the Prashant meme/trend ("the idea"). As the "author of a work shall be the first owner of the copyright subsisting upon the work9", Ayush owns the copyright over the video content he has uploaded, but not over the word 'Prashant' alone.
Can Trademark Law be availed?
Technically "Prashant" can be trademarked by the content creator, as various memes and viral trends have been trademarked. For example, Grumpy Cat – the American internet celebrity cat known for her grumpy appearance who was the subject of a viral meme in the early 2010s.10 The meme holds eight trademarks with the USPTO. Other examples include the 'Distracted Boyfriend', 'Success Kid', 'Nyan Cat' and 'Binod'. Doing so would allow the creator to protect any unauthorised use of the meme/viral content. Also, as the Trade Marks Act, 1999, does not restrict registrations of names, "Prashant" can be trademarked. However, as Prashant is a common Indian name, it would be hard to register it when many individuals share the same name, weakening the distinctive element needed to be granted trademark registration. Secondly, the trademark must be tied to commercial use. If not, it would be hard for him to claim exclusive rights over the meme through trademark laws.
Are Brands misusing 'Prashant'?
Brands, for visibility, would be willing to use viral memes/trends as a perfect tool to market their brands to the public due to the engaging power with the public they have. Memes increase engagement. They make brands feel human. Technically, using a meme does not always call for legal action. Usually, if used only for sharing for humour purposes – as was done with the Prashant meme by netizens on social media – this does not usually attract any legal complications, as it can be protected under the doctrine of fair dealing under Sec 52 (1)(a) of the Act. Blackwood and Sons Ltd. and Ors. v. AN Parasuraman11 explains the term "fair" in "fair dealing", i.e., "In order to constitute unfairness there must be an intention to compete and to derive profit from such competition and that unless the motive of the infringer were unfair in the sense of being improper or oblique the dealing would be fair." Most netizens sharing the meme online aren't trying to gain any commercial benefit, nor are their intentions improper; therefore the risk of being sued is extremely low. Added to the fact that meme/viral trend culture is reliant on the engagement that it gets from social media users, which benefits the creators.
But if the use changes from entertainment purposes to commercial purposes, it may attract copyright violations. Brands can make use of the word 'Prashant' alone, as done by Swiggy and Britannia above. This does not violate the copyright of the content creator, as names, especially ones so common in India, do not hold copyright of their own. It is also an added benefit that the use by both Britannia and Swiggy is transformative, adding a new expression to the original meme. But when the use of the meme involves the actual content or, in this case, the video uploaded by Ayush, or even his voice as an ad campaign (basically meme marketing) without proper licensing, brands risk becoming a target for cease and desist notices or even copyright infringement suits. This was what Grenade Beverage faced when they were hit with a $710000 suit for using Grumpy Cat's image on products outside of their licensing agreement.10
In Christopher Orlando Torres and Charles L Schmidt v. 5th Cell Media LLC and Warner Bros Entertainment Inc., the creators of Nyan Cat and Keyboard Cat, which are popular video-based internet memes, filed a trademark and copyright infringement suit, claiming that both 5th Cell Media and Warner Bros have used their memes in the Scribblenauts games without prior authorisation by the creators. This legal 'catfight' resulted in an out-of-Court settlement through which both creators ensured they were getting paid for the use of their memes in the games.12
In the case of memes involving people or their voice, image or video, as is with the Prashant meme, meme marketing could imply unwarranted association or endorsement, something which would not have been the actual will of the memer/creator. This could infringe his personality rights protected under Article 21 of the Constitution of India. In simple terms, these are the rights with a person by which he can control the commercial use of his name, image, likeness, voice and other aspects of his identity. In worst scenarios, if used in a way that amounts to mockery, it may damage the reputation of the person. Brands using such memes may attract legal actions for their unauthorised use of the persona of individuals in the name of marketing. Model Kelleth Cuthbert did the same when Fiji used her likeness for a promotional cardboard after she went viral as the "Fiji Water Girl".13
Therefore, if video-based memes such as the Prashant meme are shared by random users online, the legal risk is negligible. Even just the idea or the text being used separately poses negligible risk. But when the use is done deliberately to gain commercially, the legal risk one can face increases drastically. However, if brands just reference the meme without actually using the content, they aren't infringing any copyright.
What can be done?
It is relatively an easy and effective method to use memes to market one's brand. Doing so brings more brand visibility and brand awareness to the public that is beneficial to the brand's financial growth. Before using such marketing strategies, the marketing team behind it needs to be aware of the potential risks surrounding this if used without a proper background check into the legalities of the memes they are trying to use. As brands with a lot at stake, this is an important step if they choose to include meme marketing in their marketing strategies.
Brands must beforehand check the ownership of the meme as well as the ownership of any IP attached to it. Once done so, they must ensure that it is legally good to use by making proper binding licensing agreements with the owners regarding their use of the memes. This also follows that the brands must ensure that they have read and completely understood the terms and conditions in the agreement. For their benefit, it is a plus point if the agreements can be amended whenever needed.
Alongside licensing agreements, brands can partner with the creators of the memes, especially in the case of the Prashant meme, where various brands like Philips, Britannia, and Netflix have done so. If all this seems daunting for brands, the best option is to refrain from using copyrighted memes or avoid direct use of memes by creating original, transformative, inspired-by-content along the lines of the "meme" in question, while crediting the original creator from where the inspiration arose. By taking such proactive steps, brands can secure their future as well as foster beneficial relations with the creators, benefitting both simultaneously. After all, the best rule is to proceed with caution if in doubt, which applies in situations involving intellectual property.
REFERENCES
- @Swiggy (X, 21 March 2025) < https://x.com/Swiggy/status/1903004523721003142?t=GVT7SD4VDJtVPNSbGys-mg&s=19>
- Ivy Choi, 'What are you IP rights to internet slang and memes?(Asia IP, 30 September 2022) < https://www.asiaiplaw.com/sector/media/what-are-your-ip-rights-to-internet-slang-and-memes>
- Tejaswi D. Shetty, "Copyright Provision pertaining to 'Internet Memes' in India" ( NLIU CSIPR, 27 May 2022), < https://csipr.nliu.ac.in/copyright/copyright-provisions-pertaining-to-internet-memes-in-india>
- Eastern Book Company & Ors. v. D.B. Modak & Anr., AIR 2008 SC 809
- DPIIT, "Frequently Asked Questions" (Copyright Office, Government of India), <https://copyright.gov.in/frmfaq.aspx>
- Ananyaa Banerjee & Soumya Sehgal, "Memes and Copyright Protection" (S.S. Rana & Co., 6 December 2021), < https://ssrana.in/articles/memes-and-copyright-protection/>
- The Copyright Act, 1957, s 13
- Michela Galea, Inspiration or infringement? Social media 'viral' trends: a case study on TikTok, Journal of Intellectual Property Law & Practice, Volume 19, Issue 6, June 2024, Pages 541–546, <https://doi.org/10.1093/jiplp/jpae038>
- The Copyright Act, 1957, s 17
- BBC News, 'Grumpy Cat wins $710,000 payout in copyright lawsuit' (25 January 2018) <https://www.bbc.com/news/world-us-canada-42808521>
- Blackwood And Sons Ltd. And Ors. vs A.N. Parasuraman And Ors, AIR 1959 MAD 410
- Katie Van Syckle, "Keyboard Cat and Nyan Cat Come Out Ahead in Lawsuit Against Warner Bros" ( Intelligencer, 26 September 2013), < https://nymag.com/intelligencer/2013/09/keyboard-cat-nyan-cat-win-warner-bros-lawsuit.html>
- BBC News, "Fiji Water Girl: Legal battle for Golden Globes model" (9 February 2019), < https://nymag.com/intelligencer/2013/09/keyboard-cat-nyan-cat-win-warner-bros-lawsuit.html>
Footnotes
1 @Swiggy (X, 21 March 2025) < https://x.com/Swiggy/status/1903004523721003142?t=GVT7SD4VDJtVPNSbGys-mg&s=19>
2 Ivy Choi, 'What are you IP rights to internet slang and memes?(Asia IP, 30 September 2022) < https://www.asiaiplaw.com/sector/media/what-are-your-ip-rights-to-internet-slang-and-memes>
3 Tejaswi D. Shetty, "Copyright Provision pertaining to 'Internet Memes' in India" ( NLIU CSIPR, 27 May 2022), < https://csipr.nliu.ac.in/copyright/copyright-provisions-pertaining-to-internet-memes-in-india>
4 Eastern Book Company & Ors. v. D.B. Modak & Anr., AIR 2008 SC 809
5 DPIIT, "Frequently Asked Questions" (Copyright Office, Government of India), <https://copyright.gov.in/frmfaq.aspx>
6 Ananyaa Banerjee & Soumya Sehgal, "Memes and Copyright Protection" (S.S. Rana & Co., 6 December 2021), <https://ssrana.in/articles/memes-and-copyright-protection/>
7 The Copyright Act, 1957, s 13
8 Michela Galea, Inspiration or infringement? Social media 'viral' trends: a case study on TikTok, Journal of Intellectual Property Law & Practice, Volume 19, Issue 6, June 2024, Pages 541–546, <https://doi.org/10.1093/jiplp/jpae038>
9 The Copyright Act, 1957, s 17
10 BBC News, 'Grumpy Cat wins $710,000 payout in copyright lawsuit' (25 January 2018) <https://www.bbc.com/news/world-us-canada-42808521>
11 Blackwood And Sons Ltd. And Ors. vs A.N. Parasuraman And Ors, AIR 1959 MAD 410
12 Katie Van Syckle, "Keyboard Cat and Nyan Cat Come Out Ahead in Lawsuit Against Warner Bros" ( Intelligencer, 26 September 2013), < https://nymag.com/intelligencer/2013/09/keyboard-cat-nyan-cat-win-warner-bros-lawsuit.html>
13 BBC News, "Fiji Water Girl: Legal battle for Golden Globes model" (9 February 2019), < https://nymag.com/intelligencer/2013/09/keyboard-cat-nyan-cat-win-warner-bros-lawsuit.html>
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
