With great popularity comes its own set of rights commonly known as personality rights. Personality rights are typically associated with people who have acquired status of being a celebrity and further seeks to prevent unauthorised use of the name, image, likeness, or some other identifying aspect of identity of a famous personality and including their right to privacy.
Personality rights in India are protected under common law as well as under Article 21 of the Indian Constitution. Celebrities in India can invoke common law right to prevent unauthorised use of their image or personality by any other person. If any person without permission of a celebrity tries to give an impression that his brand or product has been associated or endorsed by that celebrity, he could be sued for the tort of passing off by the celebrity. Additionally, Article 21 of the Indian Constitution provides for right to privacy and publicity which has been an effective piece of legislation in protecting the rights of the famous personalities in the country against the people with malicious intent of earning commercial benefits from their name and identity.
The Indian courts have been upfront in protecting the rights to privacy and publicity of celebrities and the same can be seen in the various judgments of the courts, some of which are discussed below:
In ICC Development International Ltd. v. Arvee Enterprises & Anr. , it was held by the Delhi High Court that using a celebrity's fame and popularity without his or her authorization is not legitimate use. A celebrity therefore has a valid cause of action for opportunistic commercial exploitation and any unauthorized use of his or her name.
In Titan Industries v M/s Ramkumar Jwellers , the Delhi High Court while granting a permanent injunction against the Defendant defined ‘right to publicity’ as follows:
"When the identity of a famous personality is used in advertising without their permission, the complaint is not that no one should not commercialize their identity but that the right to control when, where and how their identity is used should vest with the famous personality. The right to control commercial use of human identity is the right to publicity".
In recent times many “celebrities/famous personalities” have been claiming their personality rights, the most recent of them all is the claim made by the legendary cricket star, Sachin Tendulkar. The claim filed by him was against an Australian bat maker company Spartan Sports after it allegedly failed to pay him nearly $3 million under an exclusive licensing agreement to use his name and image on sporting goods. In September 2018, Mr. Tendulkar had terminated the agreement with Spartan and subsequently requested it to cease using his image. However, Spartan continued to use his image and name.
In January 2019, the Delhi High Court in Rajat Sharma & Anr v Ashok Venkatramani & Anr upheld the celebrity rights of Rajat Sharma to his name and also recognized his publicity rights over the show ‘Aap Ki Adaalat’. In the present case, the Zee Media Corporation, in order to promote its new TV news channel published and circulated an advertisement featuring the names of famous news anchors with the names of their shows and channels for the promotion of their own TV news channel claiming it to be an anchorless channel. The court, while restraining the Zee Media from issuing any advertisements in the print media, TV channels or otherwise which contains the name of Rajat Sharma stated that Sharma had an unassailable right in his public persona and identity as a famous television show host. It also stated that the use of the Statement in the Advertisement amounted to false advertising.
Another case adjudged by the Delhi High Court was of Gautam Gambhir v D.A.P & Co. , Gautam Gambhir filed a suit against a Delhi based resto-bar from using his name as a tagline. He alleged that use of his name would mislead the public to believe that the restaurant is associated with him. Though the celebrity status of Gautam Gambhir was not disputed, the Court rejected the petition as the name of the owner of the pub was also Gautam Gambhir. It held that an individual is entitled to carry on his business in his 'own' name so long as he does not do anything more to cause confusion with the business of another and if he does so honestly/bonafide.
In Barkha Dutt v Easyticket, Kapavarapu, Vas, well known journalist Ms Barkha Dutt filed a complaint with the WIPO Arbitration and Mediation Center against EasyTicket. Vas Kapavarapu of EasyTicket had registered the domain in January 2007. WIPO held that the Complainant had acquired fame by her work of journalism and this in turn had gained secondary meaning due to use of her name in commerce and cannot be misunderstood for someone else but her. WIPO also found that the Respondent could not establish that he had legitimate interest in the domain and use of the registered domain name was in bad faith by the Respondent. WIPO thus ordered the Respondent to transfer domain name to the Complainant.
Personality rights are independent and should not be commercially violated by others without the concerned celebrity’s permission. However, they are not absolute and the use of a celebrity’s attributes must be unauthorized and dishonest before an aggrieved’s claim can succeed. In India, there are no well defined statutory provisions within the intellectual property laws that protect the personality rights of the celebrities and at present the courts while dealing which celebrity cases, rely on the constitutional protection under Article 21 of right to privacy and publicity. The recent judgment of the Delhi High Court in the case of Mr. Rajat Sharma has once again reiterated its stand on protection against unauthorized use of name of famous personalities. A recent trend which can been seen in the western countries is that many celebrities have started registering their names as well as any mark which can be associated to them as trademarks so as to protect any possible infringement of their rights. This trend of getting their names and marks associated with them registered under trademarks is being rapidly adopted by the Indian celebrities as a protection mechanism against the unauthorized use of their names. The legislature owing to the fact that due to the increasing age of social media and brand competition, it is getting difficult for a celebrity to protect his identity by getting commercially exploited by the persons infringing it and hence a statutory provision should be formed to recognize such a right.
This article has been published in MONDAQ on 12th July 2019
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