TRADEMARK IN THE REALM OF ENTERTAINMENT INDUSTRY

TRADEMARK IN THE REALM OF ENTERTAINMENT INDUSTRY

Trademarks have become increasingly important to be safeguarded and protected, especially in this highly influential digital age. A trademark or a service mark is a mark that identifies the goods or services of the company and also distinguishes it from its competitors in the market. It can be either be a name, logo, picture, slogan and even smells and sounds of any kind.

In 1994, Motorcycle brand ‘Harley Davidson’ had filed a sound trademark for its V-twin engine sound. It can’t be denied the fact that the trademark has become the norm in the current era of the entertainment industry as well. The paradigm shift relating to rights and issues of Intellectual Property plays an important role in solving the conflicts and controversies relating to the trademark in the entertainment industry, for instance, unauthorized use of a film title or a song name, or deceptively similar film title or song. Such misuse of trademark damages both the brand and confidence of owners. however, any person using a brand, name, logo, etc.

Within the media and entertainment industry needs to ensure that it is registered as a trademark and protected from the world. However, the issue faced by the industry is Piracy but the protection for the same is provided under three different laws i.e., Trademark, Copyright, and Unfair-Competition.

ENTERTAINMENT INDUSTRY AND IPR

The Entertainment Industry is regarded as one of the largest industries in the world, it mainly deals with films, music, print, radio, and television. In India, the Media and entertainment industry (M&E) has been growing rapidly due to the rise in digitization, widespread access to the internet, content creation, and consumer demand. The increase in its growth rate has led to an increase in various legal issues as well. One of the legal issues arising in the entertainment industry is relating to intellectual property rights, mainly copyright and trademark. Moreover, the entertainment industry is broadly covered by music, films, and fashion, the trademarks used in such respects include song titles, Film titles, Music Band names, Brand logos, Brand names, images, etc.

In the case of Sholay Media and Entertainment Pvt Ltd. Vs. Parag M. Sanghavi 223 (2015) DLT 152, MIPR 2015 (3) 0096, the petitioner had sued Ram Gopal Verma’s movie titled ‘Ram Gopal Verma Ke Sholay’ for trademark infringement concerning the cult film ‘Sholay’ which was released in the year 1975. The main issue, in this case, was for a film title. Ram Gopal Verma then changed the movie title to ‘Ram Gopal Verma ke Aag’.

Every movie title or a song name is a unique creation and portrays a different story and exclusivity in itself. Trademark comes into play when such names are to be registered as trademark or service mark to prevent others from using it unfairly or stop others from making profits out of it. In 2013, when Salman Khan was starring in the movie ‘Jai Ho’ faced a delay, as the movie title ‘Jai Ho’ was previously owned by the musician A.R. Rahman as a trademark on his song from the Oscar-Winning Movie ‘Slumdog Millionaire’. however, the movie was released after the ‘out of court settlement’ made by both the parties.

TRADEMARK AND CELEBRITIES

Celebrities have started to make use of the protections offered by trademark law as well. Celebrities trademark their names, catchphrases, identities, posture, and even the names of their toddlers, firstly, to prevent or stop the public from unfairly profiting from their identity without consent, secondly, to make profits from the trademarks if they plan on releasing products or services in the future on ‘proposed to be used’ basis.

Recently, famous singer ‘Dua Lipa’ has registered her name as a brand to release a wide range of products or merchandise to make a profit off her identity. In the case of Celine Dion and Sony Music Entertainment (Canada) Inc. v. Jeff Burgar, Celine Dion and her company had owned the domain name ‘celinedion.com’. Defendant started to operate and carry on business in the name of ‘CelineDionClub.com’. WIPO ruled that the defendant’s domain name was confusing and quite similar to the domain name owned by Celine Dion and the company.

In India, the concept of trademarking the name is gaining traction. Many celebrities have applied for registering their names and pictures. Further, Section 14 of the Trademarks Act also prevents the unauthorized use of celebrity names and registration of trademark without their consent.

REGISTRATION AND REMEDY

A Trademark is capable of registration only when the signs are distinctive, non-deceptive, dissimilar, non-identical, etc. A trademark can be easily distinguished from copyright, copyright arises as soon as the creation is made and is allowed to be claimed for a limited duration only. Whereas in the case of trademarks it has to be registered because they do not arise automatically and it can last forever when renewed from time to time. However, unregistered trademarks with high reputation is a valuable trademark in itself therefore it cannot be considered as devoid of value. When there is an absent registration, damage to an individual’s goodwill and reputation, or confusion, the only remedy available is the ‘law of passing off’. The law of passing off is a remedy that prevents an individual from misrepresenting his or her goods or services as that of another and protects unregistered trademarks under Section 27 of The Trademarks Act, 1999. A celebrity may protect his or her publicity and image right by resorting to the action of Passing Off, which in return requires proof of reputation, misrepresentation, and damage caused to such celebrity.

CONCLUSION

In India, the advancing nature of the entertainment industry and the spread of awareness regarding Intellectual property rights has led to an increase in the use and registration of trademarks, to safeguard the creations and prevent others from using and benefiting from the same. The trademark in the entertainment industry aims to differentiate the mark of one person from those of another. It also protects the name and image which is likely to be associated with a plethora of products sold in the market and also ensures that the person is paid whenever he or she lends his or her name to promote or market a product.

To know more about, How film title protected in terms of trademark and copyright law, see the video below -

BY-

Sharmili Singh