DEFINITION

 Character merchandising is a promotion technique using which goods and services

resembling famous fictional or non-fiction characters are made for drawing the
attention of customers.
 It is a medium by which a famous personality and the creators of a fictional character
or real character commercially exploit or authorize someone else through third-party
agreements to exploit the personality features like name, image, appearance, sound,
etc. of these characters in relation to some goods or service with a view to creating in
prospective customers a desire to acquire those goods and/or to use those services
because of customers’ likeness to a character.

HISTORY/ORIGIN

 The toy industry was the first to recognize the use of popular characters and today is
still the largest market. Walt Disney initiated the organized system of character
merchandising in the 1930s by selling T-shirts, badges, posters with its famous
cartoon characters like Mickey Mouse, Minnie Mouse, and Donald Duck.
 Character merchandising as a marketing technique has a secure future as it will keep
growing. Its commercial potential is immense and its advantages over traditional
techniques ensure continuous development. Character merchandising has
revolutionized marketing practices.

DIFFERENT TYPES

 Fictional and cartoon character merchandising -

It involves the use of the essential personality features (name, image, etc.) of fictional
characters in the marketing and/or advertising of goods or services. The characters are
originated from, literary works being adapted to a cartoon such as Pinnochio and
Alice in Wonderland, cartoons originally for films such as Mickey Mouse, Minnie
Mouse, and Donald Duck or for cartoons for comic strips such as Tintin, Astérix, and
Batman.
  personality merchandising-
 which includes merchandising of the person who plays the character and not the character
only. A prime example of this is Iron Man; for example, the t-shirts that are red and gold
can easily be associated to Iron Man and people buy it because of such association. On
the other hand, if a cricketer is endorsing a deodorant brand, then people, owing to the
distinct personality acquired by the cricketer, will buy the product because the cricketer is
associated with that brand.
 In D.M. Entertainment Pvt. Ltd. v. Baby Gift House and Ors. 2010, The Delhi High
Court validated the transfer of trademark on Daler Mehndi’s name by the singer to his
company. In this case, the defendant was selling dolls that looked like Daler Mehndi and
danced to his famous songs, the court held that this was an act of passing off. The court
observed that the right of publicity is the prerogative of an individual and only he has the
autonomy to authorize or not authorize the commercial exploitation of his likeness or
some attributes of his personality. 

 image merchandising-
 which the actual person and the character he plays are not differentiated. People associate
the person as the character itself, instead of their actual personality, for example, Robert
Downey Jr. is more famous as Tony Stark and Iron Man than as his himself i.e., his actual
personality, therefore people would want to buy Iron Man merchandise with his face or
with his voice (in a toy).
 In Arbaaz Khan v. Northstar Entertainment Pvt. Ltd., Bombay High Court granted
copyright to the character named Chulbul Pandey from the movie Dabangg having the
opinion that the character in question is unique and has his style and makes it one of a
kind and unique and distinctively recognizable from the entire film.

OWNERSHIP OF RIGHTS

The rights attached to a character is usually vested with the creator of such character. Unless
the creator of the character has licensed or transferred his right forward to another individual,
in which case that individual becomes the owner. In case the character is created in due
course of employment then the owner of such work would be the employer.
In case there is image merchandising, i.e., merchandising based on the image of a certain
actor famous for playing a certain character on screen, the rights become attached to such real
person (the actor) and is owned by such person.

ADVANTAGES OF CHARACTER MERCHANDISING

 For commercial commotion, it is necessary to attract consumers and generate

awareness of the products. With character merchandising, dual benefits are met. The
audience either recognizes the goods or services originating from a particular
manufacturer, creating the excitement of the product, or draws closer to the cartoon,
film, character, or serial, creating greater inclination for the same. Either kind of
interest is a mode of mutually nurturing both the endeavors, i.e., that of the proprietor
of such creative rights or that of the manufacturer or provider of goods or services.
 As noted above, merchandising of goods often depends on the negotiation of a
contract of license. By such virtue, there is a certain degree of royalty to which the
proprietor of creative works is entitled. The money raised thereof is an additional
benefit to the pocket of the proprietor. Another benefit is that the licensor
has Trademark Protection that prevents others from exploiting his logos or
characters.
 It also enables a certain degree of quality control as to who uses the registered,
licensed mark concerning the goods and services and the quality thereof. The licensor
can set limitations and qualitative requirements required to make use of the mark
within the stipulated contract itself.

LEGAL ISSUES AND PROTECTION

 There is no specific legislation for the protection and regulating character

merchandising in any country. In India, laws on copyrights, trademarks, and industrial
designs, together with the protection against unfair competition (including passing-
 off), may be relevant in the context of the merchandising of fictional characters and
image merchandising.

1. Copyrights Act, 1957

 Copyright subsists not in ideas but expressed forms of the idea. Copyright is a bundle
of rights given by law to creators of original literary, dramatic, artistic, musical work
and producers of cinematographic films and sound recordings When it comes to
character merchandising, the relevant copyright subsists in literary work, artistic
works, and cinematograph films. Copyright law gives protection to creators and
owners of characters. Thus authors of comic strips, books, novels from which
character originates and the producers of cinematographic films have the right to do
or authorize others to commercially exploit the characters and prevent others from
doing the same
 The term of copyright protection in the case of fictional characters from literary and
artistic work is the author’s lifetime plus 60 years and that of the cinematographic
film is 60 years from publication. The criminal remedies, as well as civil remedies of
injunction, damages, and passing off, are granted by the Courts. In the USA, to test
the copyrightability of characters, the courts have come up with Character Delineation
Test and the Story Being Told Test. However, they are not applied very strictly.
 In Diamond Comic Pvt. Ltd. and Anr. vs. Raja Pocket Books and Ors (2005), the
plaintiff’s company is the leading publishing and printing company of comic books.
The defendant agreed with the plaintiff, assigning the rights in publishing the
character ‘Shaktiman’ in form of a comic book. When the defendant comic book
started gaining a reputation in the market, they started manufacturing and selling their
comic book. The plaintiff received the notice from the defendant to terminate the
assignment deed. As per Section 19(a) of the Copyright Act, 1957, the assignor of the
copyright cannot unilaterally revoke or withdraw the assignment and also cannot
reassign the same to any other person. The court, therefore, passed a mandatory
injunction against the defendant and restrained the defendants from publishing,
printing, or circulating the ‘Shaktiman’ character in the form of comic books.
2. Trademarks Act, 1999

 According to section 29 of the Indian Trademark Act 1999, a registered trademark owner
can stop others from using a deceptively similar or an identical mark on goods and
services without the permission of the owner of the trademark. The authors or the owners
safeguard their rights and the goodwill attached to the character by registering their
character as a trademark under the Trademark Act, 1999
 They can further license their use of a trademark to a third party and gain commercially.
Celebrities can also register their names and appearance as a trademark and prevent
others from using it. Actors like, Shahrukh Khan, Amitabh Bachhan has got the
trademark of their name registered. Similarly, Akshay Kumar has got “Khiladi” registered
on account of his several movies with the same name. The criminal remedies, as well as
civil remedies, are granted by the court in suits for infringement.
 In case of an unregistered mark, the passing-off remedy can be availed on the
establishment of goodwill in the trademark, misappropriation of the defendant, and loss of
trade or damage to goodwill faced by the plaintiff as a result.

3. Right to Privacy

 In India, there is no statutory law that recognizes the rights of a famous personality or
celebrity. But the courts have often recognized and protected Personality and Publicity
rights under Article 21 Right to Privacy. Thus unauthorized personality merchandising
can be prevented through a suit for infringement of the right to privacy.

 In 2012, Titan Industries Ltd. v. M/s Ramkumar Jewellers, where photoshoot images of

Amitabh Bacchan and Jaya Bacchan for promotion of Jewelry of Titan Industries were
used by the defendant without their permission. Delhi High Court recognized
misappropriation of the couple’s personality rights and clarified that a claim for
infringement of the right of publicity requires “no proof of falsity, confusion, or
deception, especially when the celebrity is identifiable”. 
4. Designs Act, 2000

 The creators and owners of the fictional characters can also get a design registration
for specific products. A design is registrable if it fulfills the following criteria -a) New
or Original Design (Novelty or Originality), b) No prior publication of design, c)
Significantly distinguishable from known designs or combination of known designs
(Distinctiveness), d) Does not comprise or contains scandalous or obscene matter, e)
Use would not be contrary to public order or morality, f) Does not hamper Security of
India
 PERSONALITY RIGHTS

DEFINITION -

Personality rights are rights associated with an individual’s personality that may be protected
as an individual’s right to privacy or as their property.  According to Merriam-
Webster, “personality Rights are rights (as of personal security, personal liberty, and private
property) appertaining to the person”.
Celebrities or public figures are frequently taken advantage of by invasions of their privacy
and misuse of their names due to the introduction of numerous types of mass media and the
ever-growing trend of advertisements, which makes it a necessity for celebrities to get their
personalities protected through Intellectual Property Rights (hereinafter referred to
as “IPR”).

INTERSECTION OF PERSONAL RIGHTS WITH OTHER

CONSTITUTIONAL RIGHTS

Personality Rights
Depending on a person’s employment, social position, and other aspects of their daily lives,
the general public create a distinct perception of them. These activities are viewed as an
outgrowth of their personalities. An individual’s personality so embodies the emotional,
dignified, human, and moral values associated with it.

Since, celebrities are considered to be influential to a huge number of people and hence
numerous media outlets, traders, and manufacturers frequently infringe on the personality
rights of celebrities. A few well-known examples of such infringements on celebrities’
personality rights include the use of Amitabh Bachchan’s voice to promote a tobacco product
and the unlawful use of Rajnikant’s character traits.

Publicity Rights
Publicity rights have gained significant attention in the realm of IPR in the recent years.
These rights, commonly referred to as celebrity rights, are those linked with an individual’s
personality. They are defined as the right of an individual to control the commercial use of
his or her identity.
A celebrity’s public image is extremely valuable and has monetary value attributed to it. As a
result, it is critical for such a person to defend his or her rights so that no one else can abuse it
or profit from it.

Privacy Rights
The media believes that it is their inherent right to capture and publish all information on
celebrities about matters of “public interest” or “public concern” that derive from Article 19
of the Constitution of India’s “Freedom of the Press”.

Celebrities and public figures have objected to this since it interferes with their personal lives
and their right to privacy. Every individual has the right to safeguard his or her own life and
image as it is portrayed to the rest of the world. Unless with his/her consent, the power to
manage the commercial use of his/her own identity should be not lie with any third party.

Personality rights as such are not explicitly included in the Constitution, but privacy was
recognized as a fundamental right under Article 21 if the Constitution, in the case of Justice
K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161.  As an extension of liberty, privacy
is a “right to be left alone” and anyone who uses someone else’s identity without their
permission is considered to have infringed both their personality rights and the fundamental
right to privacy.

WHO IS A CELEBRITY?
 Celebrity is sought by many as an honour. In a democracy, it is generally a reward for
success. Sportsmen and artists earn it by skill. Businessmen and TV personalities earn
it by wit. Politicians earn it by votes. Anyone can aspire to it. It is the public that
confers celebrity. The public are stipulated by the media. But in the end, it is the
public’s choice that conveys who is a celebrity be it as a consumer or electors. There
is also another class of celebrity which is more or less involuntary. Princes and
princesses acquire it by marriage or by blood. Others acquire it by their chance of
involvement in newsworthy events. Only when the public is able to associate a person
with an identity or persona is when his/her personality can be exploited.  
 In Titan Industries Ltd. vs. Ramkumar Jewellers, the Delhi High Court in 2012
defined a celebrity as “a famous or a well-known person and is merely a person who
 “many” people talk about or know about” and further went on to lay down that “The
right to control commercial use of human identity is the right to publicity.”

STATUTORY INROADS OF PERSONALITY RIGHTS

1. Protection under Right to Privacy

Right to privacy is now a fundamental right read under Article 21 of the Constitution of
India, though not without restrictions. Freedom of the press is enshrined under Article 19 of
the Constitution. Also, the expression of ‘freedom of speech and expression’ used in Article
19(1)(a) includes within its purview, the right to acquire information and disseminate the
same. 

Personality rights in the form of the right to privacy were first recognized explicitly by the
Supreme Court in R RajaGopal v State of Tamil Nadu (JT 1994 (6) SC 514). In that case, the
court observed that: “The first aspect of this right must be said to have been violated where,
for example, a person’s name or likeness is used, without his consent, for advertising or non-
advertising purposes or for any other matter.”  This is a landmark judgement and there have
been many such rulings since then, by various Courts citing this judgement.

2. Protection under Trademark Law

 The limited protection to a celebrity’s image is provided under the provisions of

trademark laws. Under the Trademarks Act, 1999 there is no specific provision to
grant protection to image and publicity rights. Though, the Act under Section 2(m)
providing the definition of ‘mark’ does include names. Some well-known
personalities from India like Baba Ramdev, Sanjeev Kapoor, Sachin Tendulkar,
Shahrukh Khan and Yuvraj Singh etc. have applied for the registration of their name
as a trademark to have protection under the Act against its misuse. 
 Section 14 of the Trade Marks Act, 1999 restricts the utilization of individual names
where an application is made for the registration of the trademark, which dishonestly
proposes an association with a living individual, or a man whose passing occurred
inside 20 years before the date of application of the registration of the trademark. In
this manner, the lawful beneficiaries of the celebrities can likewise protect the abuse
of their names. The purpose of perceiving the transferability and permitting of the
specific right can be constructed from the statute. Accordingly, the property right in
one’s name is allowed to celebrities in the trademark law. Though, the lacuna of not
delineating the rules on assigning and authorizing such a right need to be taken into
consideration. 

3. Protection under Copyright Law

 The Copyright Act, 1957 does not define the word ‘celebrity’. However, the
definition of a ‘performer’ under section 2(qq) includes an actor, singer, musician,
dancer, acrobat, juggler, snake charmer, lecturer or any other person who delivers a
performance. There is a lack of legal definition of celebrity as even if the reference is
made to the definition of a performer as provided in section 2(qq) of the Indian
Copyright Act, a performer is not a celebrity always and a celebrity may not be a
performer at all. For example, a teacher teaching in class or a snake charmer
performing his art are performers but not celebrities. 
 In the case of Phoolandevi Vs Shekar Kapoor & others, Phoolan Devi protested
that the film made by the respondent had morphed the facts. She sought an injunction
as she had already begun a fresh decent life and given up her all past criminal
activities. The court held that the issue should be properly examined and before the
release of film, the effect on the private life of individuals due to its exhibition should
be scrutinized. 
 In the case of Sourav Ganguly vs Tata Tea Ltd, Tata Tea Ltd., in which Sourav
Ganguly was employed as a manager, was promoting its 1 kilo tea packet by alluring
the consumers by offering them a chance to congratulate Ganguly through a postcard
which was inside each packet of tea. In a way, the company intended to promote the
sale of its tea packet in the Indian market using the cricketer’s fame and popularity.
 Relief was granted to him by holding that his popularity and personality forms to be
his intellectual property and thus a licensed innovation.

4. Torts and Passing-off

The tort of misuse of personality or celebrity rights can be distilled into three aspects:

 The enrichment of the plaintiff’s personality for monetary purposes.

 The personality violation so enriched is caught and is identifiable by the public at

large.

 The advertisement or use by the plaintiff is hinted at.

In the K.Ganeshan  case (2016), the court allowed the tort of publicity as the deceased
journalist could not be easily identified by name by the public.  The jurisprudence in India
concerning the right of publicity deals with privacy at the base but is made in very certain
cases only. In reality, it becomes difficult when the celebrity uses the same right for negative
publicity and wants to sue for the same. Tortious liability is given as it provides much higher
damages, thereby tending to be misused. The above case is the landmark precedent which
allows the family/estate of a deceased person to exercise their right to sue for the right to
publicity on behalf of the deceased where there is publicity related to them
 PROBLEMS TO CONSIDER

 Right of publicity: The right of publicity is a legal right that protects the use of a
person's name, image, or likeness for commercial purposes. The use of a celebrity's
name, image, or likeness without their permission can constitute a violation of their
right of publicity. To avoid this problem, it is essential to obtain the celebrity's
consent before using their name, image, or likeness.

 Misappropriation: Misappropriation occurs when a person or company uses a

celebrity's name, image, or likeness for commercial gain without their permission.
Misappropriation can lead to legal action and damages. To avoid misappropriation, it
is essential to obtain the necessary permissions and licenses before using a celebrity's
name, image, or likeness.

 Trademark infringement: Using a celebrity's name, image, or likeness in a way that

creates a likelihood of confusion with an existing trademark can constitute trademark
infringement. To avoid infringement, it is essential to conduct a comprehensive search
for existing trademarks and to obtain clearance from the trademark owner before
using a celebrity's name, image, or likeness.

 Defamation: The use of a celebrity's name, image, or likeness in a way that defames
them can lead to legal action and damages. To avoid defamation, it is important to use
the celebrity's name, image, or likeness in a way that is truthful and not misleading.
 JUDICIAL INTERPRETATIONS OF PERSONALITY RIGHTS

 The test of identifying in which situations infringement of personality rights arise was
laid down in Titan Industries v. Rajkumar Jewellers, wherein the Court stated that
personality rights include the right to not intrude upon their private space or solitude,
publicly disclose sensitive facts, misrepresent their image publicly or use their name
to be unjustly enriched. In this case, Titan Industries had shot an ad campaign with
Amitabh and Jaya Bachchan for their brand Tanishq, but Rajkumar Jewellers had just
stolen the picture and other creatives and replicated Tanishq's exact hoardings with
the actors' image, but added their own trademark and trade names on it in order to
promote their own jewellery line. The Court held the defendant liable, but also
observed that there should be conclusive proof or clarity that a right has been violated
and that personality rights fade away when commercial value is largely said to stop.
 In Shivaji Raogaikwad v. Varsha Productions, the famous actor Rajnikanth
contended that the defendant had misused his mass hero image, style of delivering
dialogues and expressions, caricature and even name by portraying it to be a tribute to
the actor by including these traits, but actually have no similarity to the protagonist
besides their shared name. The producers of the film intended to appropriate the
actor's loyal fanbase to unjustly derive commercial benefits from this established
goodwill. The Court observed that this constituted a clear case of infringement even if
the film was made in a positive light.
 Posthumous Personality Rights-

 Clarity as to such a position of whether personality rights came up in Deepa

Jayakumar v. AL Vijay, wherein the court held that they cannot be inherited in
India, whether they are legal heirs or not. Personality rights thus cease to exist after
the death of the personality. Court's rationale is based on the fact that legal heirs are
not owning personality traits because those are intrinsic and personal to that
personality only. For instance, even if Sridevi's children look like her, they cannot
claim to inherently or possess her signature style or acting chops or hereditarily have
it in-built in them.
 BUZZ AROUND MOMENT MARKETING!

Moment marketing can simply be understood as a marketing technique that encashes upon
current happenings, social events and "trending" or "Buzzing" topics to promote one's goods
and services. Moment marketing has become an effective way to connect with people at large
by discussing relevant and relatable topics. The Cartoon/Sketches published by the Milk Co-
operative giant Amul are perhaps one of the most popular forms of moment marketing in
India. One of the Food Delivery App- Zomato has proven to be an effective user of the
moment marketing technique, by adding their own 'flavour' to current happenings and
connecting to its customers via social media platforms, such as Twitter. However, the stride
of moment marketing must be observed carefully for it walks on a thin line.

The Curious Case of Olympian P.V. Sindhu

A notable example of moment marketing in recent past gone wrong resulted in a legal action
being taken by Baseline Ventures, official representative of Olympian P.V. Sindhu against
almost 20 brands. This was after her legendary achievement of bronze medal in Tokyo
Olympics 2020 when brands posted Congratulatory messages for her on their social media
platforms. These congratulatory messages were alleged to have infringed P.V Sindhu's Rights
by using her images and name in a manner that could likely result in unfair commercial
benefit by passing off a connection between the brand and the athlete. Celebrity Rights are
also capable of being assigned or licensed, which is how Baseline ventures could take legal
action on behalf of P.V. Sindhu. Besides, celebrities can also endorse products and
collaborate with brands where they allow the brand to use their reputation and personality as
the "face" of the brand.
CONCLUSION
 The increase in the commercialism and consequent increase in number of high-value
endorsement deals being signed by famous personalities signifies that tremendous
value is attached to such endorsements. On the other hand, as rightly pointed by the
Delhi High Court in the case of D.M. Entertainment Pvt. Ltd. vs. Baby Gift House
and Ors. , in a free and democratic society, where every individual's right to free
speech is assured, the over emphasis on a famous person's publicity rights can tend to
chill the exercise of such invaluable democratic right. While courts need to strike a
balance between protection of high valued rights of personalities and democratic right
of individuals in society, it is also equally responsible to protect the interest of the
consumers as well from any kind of misleading advertisements and endorsements.
After all, consumer is the king!

 Even though India has come a long way in recognising personality rights, there are
still questions that arise as to what is the degree of consent required to make a film
inspired by the life of a real-life person; how to balance the constitutional freedom of
the producer to artistically express[15] in the way he wants to in his films and be in
the profession of filmmaking[16] (cinematic liberties) and the persona's rights; what
are the limits imposed upon filmmaker to not commercially hinder personality
rights[17]; and whether posthumous personality rights can be granted legal
recognition in India in the near future and if enforced, what is the nature and
exploitation scope of such rights that can be granted to the persona's legal heirs.

 None of the IPR systems are sufficient to fully safeguard personality rights. The laws
governing trademarks, passing off, and copyright each have specific gaps which is
inconsistent with the concept of personality rights. Hence, personality rights are sui
generis and cannot be properly positioned under any of the IPR laws.
 With the widespread increase in popularity of celebrities or public figures and advent
of privacy awareness among one and all, it is important that the laws keep up with the
changing times. The recent case of well-known actor Amitabh Bachchan is one of its
kind, thereby igniting the need for personality rights in India.Moving forward, only
time will tell how well-known public figures opt to safeguard their personality and
characteristics in the creative ecosystem, wherein the concept of privacy is extremely
fragile and can be easily penetrated upon.