On December 18 last year, the Delhi High Court in the case of famous prime-time news anchor Rajat Sharma passed an interim order barring misuse of his personality trademark. Sharma’s face and voice were being used in some videos which were promoting some medicines for commercial gains. The court directed the immediate removal of the videos and also asked the Meta platforms to disclose the identities of those users who posted them.
This is one of the very few cases in India where a court has recognised personality and publicity rights. This piece explores the need to regulate personality trademarks in India as our Trademarks Act of 1999 is silent on the issue.
A person’s personality is the unique collection of their traits, behaviours and characteristics that make them unique. A personality trademark refers to a person’s legal right to manage and make money of the commercial use of their name, likeness, image, voice and other personal characteristics. Personality rights are often referred to as right to publicity, which protects an individual's identity from unauthorised commercial exploitation. In India, the laws related to personality rights have changed significantly, especially in response to the rise of social media and in the digital era. Even with this development, comprehensive reforms are still urgently needed to sufficiently safeguard these rights.
Personality rights are not specifically acknowledged as a separate category in Indian law. However, a framework that recognises these rights has been progressively shaped by different judicial interpretations. The foundation for safeguarding people against unauthorised commercial exploitation of their personalities was established by the historic ruling in Justice KS Puttaswamy v. Union of India, which acknowledged privacy as a fundamental right under Article 21 of the Constitution.
For public figures and celebrities, registering their names and likenesses as trademarks is essential for safeguarding their personality rights. This registration aids in preventing unauthorised use that might harm their brand or reduce their persona's market value. Maintaining a celebrity's marketability and public image depends on the distinctive qualities that make up their brand, such as stage names, photos and other distinguishing traits.
The Delhi High Court upheld Daler Mehndi's personality rights in DM Entertainment v. Baby Gift House, prohibiting the unapproved use of his name and likeness for merchandise, despite the possibility that the creators of the merchandise design might have owned the copyright.
The current legal landscape for personality rights in India is characterised by a lack of specific legislation which would be solely dedicated to these rights. Rather, the protection is offered by court rulings. Through a number of important cases, the judiciary has contributed significantly to the definition of personality rights. For example, the Delhi High Court acknowledged the right to regulate the commercial use of human identity in Titan Industries Ltd v. Ramkumar Jewellers. Later in Amitabh Bachchan v. Rajat Nagi, 2022, a celebrity's right to control the commercial use of their persona was highlighted.
However, there are serious gaps in the protection of personality rights due to the lack of a thorough legislative framework. To make such claims, people now have to rely on a mix of trademark laws, copyright laws and constitutional principles, like the right to privacy under Article 21. This scattered approach frequently results in inconsistent court rulings and unclear enforcement.
For example, even though courts have occasionally affirmed publicity rights - for example, in the ICC Development (International) Ltd. v. Arvee Enterprises - these rights are not explicitly stated in the statute, which leaves room for uncertainty regarding their application and extent.
Additionally, non-traditional personality traits like voice, style, or mannerisms are increasingly being taken advantage of in commercial settings. Furthermore, new issues like deepfakes, virtual endorsements and the improper use of celebrity identities in AI-generated content highlight how urgently a strong legal framework is needed in India. The Indian legal system runs the risk of not being able to adapt to the changing ways that personality traits are exploited or stolen if reforms are not made.
A specialised legal framework for personality rights that acknowledges their distinctive characteristics must be established in order to close these gaps. Such a system should guarantee protection from unauthorised exploitation and strike a balance between the public's right to free speech and the financial interests of people. It would be more certain and secure for both celebrities and regular people to protect their identities if there were clear legal provisions outlining personality rights, including their extent, duration and enforcement procedures. The United States and the European Union have already acknowledged the significance of personality rights as separate from other intellectual property rights; these reforms will also bring India into compliance with international norms.
The Trademarks Rules of 2017 and the Trademarks Act of 1999 are insufficient to handle the difficulties presented by personality trademarks. They do not acknowledge non-traditional personality traits like voice, gestures, or style, which are increasingly used in commercial contexts and in the field of artificial intelligence. A more thorough framework for safeguarding a person’s identity and preventing its unauthorised use would be provided by amending the Act to include these characteristics as ‘marks’ under Section 2(1)(m). These modifications would also strengthen enforcement mechanisms and make the personality trademark registration procedure more transparent.
Technological developments like deepfakes, AI-generated content, and virtual acceptance have opened up new ways to abuse personality traits in the digital age. The law could keep up with technological advancements by enacting amendments to cover non-traditional trademarks and enforcing penalties for misuse. Additionally, strengthening India's intellectual property regime and improving individual protections would result in harmonising the country’s legal system with international norms.
A comprehensive legal framework for personality trademarks would not only safeguard the commercial value of a public figure’s persona, but also provide clear guidelines to balance individual rights with public interests, such as freedom of expression. Both individuals and companies would receive help from clarity brought by changes to the Trademarks Act and Rules, which would promote innovation and lawful use while guarding against exploitation. In order to update India's intellectual property laws to reflect the realities of the current digital and business environment, these reforms are vital.
The United States has a strong framework in place to safeguard personality rights, especially through its codified laws on rights of publicity. In contrast to India, where personality rights are dispersed through various legal theories, the United States expressly acknowledges a person's right to manage how their identity is used for making money. This recognition, codified in many state laws, provides a strong precedent for India to establish a comprehensive legal regime for personality trademarks.
Personality rights in the United States are mainly protected by state laws. Two prominent examples are the Indiana Right of Publicity Statute, which is regarded as one of the strongest, and the California Civil Code (Section 3344), which provides for trademark protection and penal damages. According to this Section, any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.
These laws expressly give people the right to prevent unauthorised commercial use of their name, likeness, voice, signature and even gestures or other distinguishing characteristics. California, for instance, guarantees the long-term preservation of the person’s identity by extending these rights for 70 years following the person’s death. The Lanham Act, which is a federal trademark law, also promotes personality protection by preventing false endorsements or misleading associations with a celebrity’s identity.
The United States' strategy shows how codified laws improve enforcement consistency and clarity. In Haelan Laboratories v. Topps Chewing Gum Co, for example, the court established a basis for safeguarding personality traits by acknowledging the right of publicity as a separate legal right. Additionally, recent instances of celebrity likeness misuse in digital and AI-generated content show how flexible US laws are in responding to current issues.
India’s lack of a dedicated legal framework leaves its judiciary to fill the gaps, resulting in inconsistent interpretations and limited protection. The Delhi High Court and other courts have recently tried to fill the vacuum in personality trademark infringements. India's legal system would be improved by incorporating aspects of the US model, such as the codification of personality rights and the explicit recognition of non-traditional characteristics like voice and gestures. In addition to offering better protections for individuals, aligning to international best practices would guarantee that Indian laws continue to be competitive in the global intellectual property market.
Pawan Kumar is an Assistant Professor at Amity Law School, Noida. Simar is a final year law student at Amity Law School, Noida.