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With an awestricken fact of being an arrant sub-continent consolidated by a population of around 17.7 % of the global population, God’s own country is a world of beauty and wonder – a third world country as postulated by the Western philosophy !
As pointed out by an article published by the Lowy Institute in 2019, Celebrities are treated like GODS in India. While there isn’t an ‘eligibility criteria’ for determining a celebrity in India (at least in legal terms), a fair bit of fan-following can make anyone an influencer, a C-E-L-E-B-R-I-T-Y. And, upon that, most of Indians idolize many international celebrities as well. The emergence of financial earning opportunities through social media platforms like You Tube, Facebook, Twitter, Instagram (and a list of endless entries..!) has ushered in a new challenge for celebrities in terms of striking a balance between their individual and handling their social life. And comes a remedial solution, a handy one – that of Celebrity Trademarks.
As stated earlier, the Intellectual Property Laws in India do not define the term ‘celebrity’. However, since they are uniquely characterized by attributes like attractiveness, fame, skills, and extraordinary lifestyle, they are in turn influencers. Celebrities are at the centre of branding and marketing strategies of companies as they promote a wide range of products and services. The use of the celebrity’s name captures the public’s attention and creates interest in the products and services. However, it is increasingly evident that many companies are using celebrity names without their consent to promote their products and services.
‘TRADEMARKING’ CELEBRITY NAMES
The major jurisdictions of the world have certain provisions regarding celebrity trademarks. For instance, in the United States the Lanham Act of 1946 and the state-wise provisions are the backbone for celebrity trademarks.
In India, celebrities have begun to register their names as trademarks to protect their name and image from being misappropriated. It also restricts the commercial use, which includes films, television, and commercials. Previously, Section 9(d) of The Trademark and Merchandise Act, 1958 explicitly refused the trademark of personal names and surnames. However, the Trade Marks Act, 1999, lacks any provision to include or exclude personal names or surnames from getting trademark protection. As per Section 2(zb) of the Act, “trade mark” means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colors. A name or a surname cannot be given protection under the Trade Marks Act, 1999 if it does not have a distinguishing character. This means that personal names or surnames can be registered as a trademark when it bears some distinctiveness.
However, there are various examples of celebrities who have trademarked their names. Actress Kajol has filed trademark applications in many categories, including telecommunications, websites, household goods, carpets, bags. Celebrity chef Sanjeev Kapoor owns the trademark ‘Sanjeev Kapoor Khazana,’ for his Television cooking show. Cricketers Sachin Tendulkar and Kapil Dev, have protected their image rights by trademarking their name or domain names for their websites. Celebrities like Shah Rukh Khan and Ajay Devgan have also registered their names as trademarks.
Section 14 of the Trade Marks Act, 1999 states that where an application is made for the registration of a trade mark which falsely suggests a connection with any living person, or a person whose death took place within twenty years prior to the date of application for registration of the trade mark, the Registrar may, before he proceeds with the application, require the applicant to furnish him with the consent in writing of such living person or, as the case may be, of the legal representative of the deceased person to the connection appearing on the trade mark, and may refuse to proceed with the application unless the applicant furnishes the registrar with such consent. This provision has been significantly instrumental in regulating an unchecked use of celebrity names.
Apart from this, certain names like, Sri Sai Baba, Lord Buddha, Sri Ramakrishna, the Sikh gurus cannot be registered under section 16(1) of 1940, 23(1) of Trade & Merchandise Act, 1958, Mark &159(2) of the Trade Mark Act, 1999. Also, the IP-India website currently has a list of around 97 names that are considered as well-known marks and that provide protection for the registration against identical or similar trademarks.
By obtaining trademark protection, celebrities can ensure that their fame and publicity is protected from being misappropriated. However, the major challenge would be that the registered mark can be held for cancellation if, for a continuous period of five years and three months from the date on which the mark was entered into the Trade Marks Register, there is no bona fide use of the trademark for the goods/ services covered by the registration. Nevertheless, a cautious approach can ensure adequate protection for celebrities seeking trademark protection.