Wednesday, December 6, 2023

Identity Theft

The Delhi High Court has recently restrained the misuse of the name, image, voice and other attributes of persona, including the “jhakaas” catchphrase of actor Anil Kapoor for commercial gain. Acknowledging that such misuse can damage a celebrity’s right to endorsement, the Court also added that “fame for a person comes with disadvantages” and “this case shows that reputation and fame can transcend into damage”

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By Dr Swati Jindal Garg

Proving that it is only Anil Kapoor who can be “jhakaas” in this big, bad world, the Delhi High Court recently restrained the misuse of the name, image, voice and other attributes of his persona, including the “jhakaas” catchphrase of the actor for commercial gains. The ex-parte interim order was passed by Justice Prathiba M Singh against several websites and platforms on a lawsuit filed by the actor, alleging unauthorised exploitation of his personality and celebrity rights for commercial use. 

Kapoor’s counsel in his petition stated that several websites and platforms were misusing the personality rights of his client through various activities thereby, indulging in the unauthorised sale of merchandise, collection of fees by using his photograph as a motivational speaker, morphing his image in a derogatory manner and selling pictures with forged autographs and the “jhakaas” catchphrase, among others. The lawsuit also sought to protect Kapoor’s personality rights with respect to his name, voice, image, likeness, manner of speaking and gestures, among others.

Justice Singh while listening to the arguments also observed that while there can be no doubt that free speech is protected, the same would be illegal when it “crosses the line” and results in tarnishing and jeopardising individual personality rights. She also said that “Using the plaintiff’s name, voice, dialogue, image in an illegal manner, that too for commercial purposes, cannot be permitted. Court cannot turn a blind eye to such misuse of personality.” Restraining the defendants from “using … in any manner the plaintiff Anil Kapoor’s name, likeness, voice or any other attributes of his personality… for monetary gain or otherwise,” the Court also restrained other unknown persons from disseminating the offending links and directed the authorities concerned to block the offending platforms immediately. Acknowledging that such misuse can damage a celebrity’s right to endorsement, the Court also added that “fame for a person comes with disadvantages” and “this case shows that reputation and fame can transcend into damage”.

This is not the first time that a celebrity has objected to the misuse of his name or personality for unauthorised commercial gains by others. Bollywood Actress Kajol has in the past made a number of submissions to trademark her name in various business categories, including telecommunications, broadcasting, websites, household utensils, carpets, rugs, tents, sacks, bags, yarn and thread, among a dozens of items. In fact, several Indian celebrities are waking up to the benefits of trademarking their names—and in some cases, their pictures—to check misuse. Yoga guru Baba Ramdev, noted cardiologist Naresh Trehan and well-known chef Sanjeev Kapoor, among others, have either applied for or registered their names in various business categories, after having suffered from instances where either a third party started reaping commercial gains wrongfully using their names or pictures, or passing off their sub-standard goods under the guise of them being endorsed by these celebrities.

The trademark law, as it stands today, protects the unauthorized use of a living person’s name or picture without his/her consent. Yoga guru Ramdev, who travels the world espousing the ancient Indian form of exercise, has found his name and pictures being misused by a horde of marketeers—from sellers of religious DVDs to Ayurvedic pharmacies. “We want to protect his name, which has become the icon of the yoga revolution,” Ramdev’s spokesperson SK Tijarawala, reportedly, said. Not only does trademarking prevents misuse, it can also help celebrities derive financial benefits by lending their names to products. For instance, Shah Rukh Khan lent his name to a perfume, which is one of the top selling perfumes today and a brand of immense commercial value. Even though it’s difficult to put a value to the names of the celebrities as it’s just a fraction of their total value, its power cannot be underestimated.

Chef Sanjeev Kapoor understood the power of trademarks at a traffic signal a decade ago when he saw a boy selling recipe books called Khazana of Chinese Recipes with Kapoor’s picture on the cover! “At that time, I had written only one book, which was called Khazana of Indian Recipes. The book cover and my picture were the same,” he said. “I had heard of piracy, but this went a step beyond. My face was used to sell something that was not mine.” To protect the celebrity chef’s intellectual property, his company has applied for at least 100 trademarks in the past few years. “In case I decide to protest, people misusing the name could ask what right do I have over ‘Sanjeev Kapoor’. To protect the right, you also need to have the legal ownership of that,” said Kapoor, who understood not only the value of his name, but also its power to influence other unsuspecting people.

Not only the name, a celebrity is also identified through other personal characteristics such as signature poses, talking styles, voices, etc, which too can be categorised as a type of property. With the advent of artificial intelligence, the value attached to the use of a celebrity’s USP like his photograph, voice, mannerism, etc, is extremely high giving an enormous commercial value to his unique personality traits. These celebrity rights not only include advertising rights, but also take in the personality rights, privacy rights, reproduction rights and merchandising, among many more. All the above celebrity rights are protected under the umbrella of the Trademark & Copyright Laws. In the recent past, even the famous Bollywood actor, Amitabh Bachchan, was granted relief by the Delhi High Court which issued a legal injunction against the defendants in the suit over infringing the personality and publicity rights of the actor. The Court, through its order, not only restrained the infringers from using his name, but also his voice, face and other personality traits without his consent as doing the same could cause irreparable loss to his reputation.

Apart from voice and photos, signature poses and moves of celebrities also need protection. Michael Jackson’s iconic “moonwalk” and Ronaldo’s goal celebration movement called “siuuu” which means a resounding “yes!” in Spanish are all cases in point. Back home, SRKs iconic pose of arms stretched wide open and Rajinikanth’s cigarette flip are all famous identifiable poses and features to which the said celebrities are entitled to. The question that now arises is can all these be protected under the Trade Mark Law?

Generally, even though body movements can be said to be common to all people, if these poses are used for branding purposes and if the same can be said to have acquired distinctiveness and are only associated with a particular celebrity, then they may qualify as trademark. Such a protection that is gained through getting a unique style/pose/name trade-marked, provides the celebrities with a means to defend themselves against the unauthorised use of the same. Signature poses may be registered as a “device mark” and signature moves may be registered as “device moves”. Famous athlete Usain Bolt, for example, has applied for the registration of his famous “lightning/Bolt” pose. In fact, the famous pose of Turkish Chef Nusret Gokce (Salt Bae) sprinkling salt in a suave manner is also registered as a trademark.

The Indian judiciary has over a period of years, recognised and protected the rights of celebrities to exclusively have control over the commercial gains from the use of their personalities and unique poses. In the case of Shivaji Rao Gaikwad vs Varsha Productions, actor Rajnikant had sought an injunction restraining the defendants from using his name/image/caricature/style of delivering dialogues in their forthcoming film titled Main Hoon Rajnikant. The court while granting the injunction had held that “the right to commercially use or exploit one’s own name, vests with the person who has worked to create the fame and can lawfully restrict any other third party from exploiting that fame for commercial purposes.”

In order to gain protection under the trademark law, all that needs to be established is that the person claiming to be a celebrity owns an enforceable right in his identity or persona and that the alleged unauthorised use of the same would immediately induce a recollection of the said celebrity. Once that is established, the aim of protecting one’s uniqueness and ensuring that it is not misused becomes clear and achievable. The stance adopted by Anil Kapoor, wherein he states that he wants to protect his unique personality and ensure that no one misuses it even after he has gone, has now made the field open for many more such cases to come to the court and seek protection. 

—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi

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