With the expansion of media and uncovering of personal life’s, celebrities, the one attracting attention of the masses, have been to a greater risk to exposure of the personal space alarming the privacy issues. A development in right to privacy brings right to publicity[1], a right to be enjoyed by celebrities indicating the characters of their personal individuality, like name. Celebrity names, the name used for making immense profits indulging in dishonest practices has raised the concerns in matter of rights. The right to decide upon their publicity and also making profit out of that exposure, has been prevalent in the western culture and slowly seeping into Indian. Right of protecting the identity has been an intrinsic right to govern commercial use out of the identity, seen to be as a property right. These are those rights which helps recognise a person as a physical and a moral being to ensure the enjoyment of one’s own identification and existence[2]. It enables to make money to the celebrity through authorised use of his/her name or image for branding, and also control over name usage if a third-party benefits from exploiting their image. Conclusively, these personality rights give individual the ability of curbing promotional use of their persona without license.
The registration of trademarks for celebrity names is recently seen as a developing field of trademark law where lot many well-known people have put a right requesting for the protection to their names prohibiting the usage. Trademark Act of 1999, section 2(zb)[3]defines trademark as any identification mark that graphically represents and creates differentiation. This includes for shape to colour combination to design to packaging. The registration of trademark in isolation rather than associating it to goods or services or both is not valid, likely King of the Bollywood industry has his abbreviation SRK trademarked in nearly 40+ classes. To note here is that the registered trademark may get deleted on inactiveness for a period of 5 years straight which further directs to step to defensive registration.
The laws that undertake personality rights is still developing in India, in the case of R. Rajagopal v. State of T.N[4] has given rise to right to publicity, this right bars people from publishing other’s life without permission as for publicity and for making unfair business and profits. Also, in Sonu Nigam v. Mika Singh[5], the famous Bollywood singer Sonu Nigam sued Mika Singh and Bright Outdoor Media, among others, in the Bombay High Court over the placement of unlicensed billboards with his image on them, which were printed smaller than to the image of Mika Singh.
This manner of advertising breached the singer’s rights to his name, likeness, and the Bombay High Court issued an injunction order prohibiting Mika Singh and OCP Music from using the plaintiff’s image in any way.
The Indian courts have been frequently viewing cases, a famous person’s right to publicity as being protected in the same manner as trademarks. The famous personality, Daler Mehndi, an Indian singer and performer, filed a lawsuit against a person who had registered the domain name “dalermehndi.net” in DM Entertainment v. Jhaveri Daler Mehndi[6]. The Delhi High Court struck down the defendant’s use of the mark as well as the domain name, recognising the potential value of an entertainer’s name as a trademark.
Consistency in the evolution of right to publicity has not been seen across the States of America. This right isn’t universally applicable wholly to the nation and also simply relying on legal framework and not taking uniqueness of each state’s jurisdiction in not fundamentally right.
As Compared to the west, Indian superstars lagged behind when it came to trademark registrations but presently superstars in India are engaging increasingly in trademark protections walking on steps of global trend[7]. Contrary to the registration elsewhere, the trend in India appears more inclined toward defensive registration, which aims to safeguard the celebrity’s reputation rather than employing it on actual goods or services. In contrast to India, the US courts have explicitly recognised the right to publicity as a property right[8], apart from the right to privacy. The breadth of the right to privacy differs between the two countries, which can be the cause of this discrepancy in practice. Thus, extent of this right is still unknown whereas the legislative right of right to privacy has a clear scope in USA. The US courts have relied on the publicity right to fill in the gaps in the right to privacy because of this limited reach. However, Indian courts have confused the terms publicity right and privacy by utilising them interchangeably.
Conclusion
Getting a trademark protection for name, media names, signatures etc. is considered to be a smart move of celebrities in securing their hard-earned reputation, and also a secondary benefit to the celebrities. There lies an economic incentive due to promotion of celebrities who trademarked their identities resulting enormous sums of money and highly valuable public image. A dual benefit to it may be held by the government who may collect taxes from these rights provided. A law that not only upholds the right to privacy but also statutorily acknowledges the business components of celebrity rights might close any gaps in the current system and hasten the commercialization of celebrity status.
[1] Image Rights of Famous Persons Vis-à-Vis Right to Privacy: An Analysis under the Intellectual Property Laws in India and other Countries, 5.1 RFMLR (2018) 1.
[2] Protecting Celebrity Rights through Intellectual Property Conceptions, (2008) 1 NUJS L Rev 615.
[3] The Trademark Act, 1999, §2, No. 47, Acts of Parliament (India).
[4] R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.
[5] Sonu Nigam v. Amrik Singh, 2014 SCC OnLine Bom 5133.
[6] DM Entm’t v. Jhaveri (1147/2001).
[7] Emerging Trends in Publicity Rights in India : An Analysis Under the Intellectual Property Laws in India, 2 CMET (2015) 74.
[8] Protecting Celebrity Rights through Intellectual Property Conceptions, (2008) 1 NUJS L Rev 615.
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