India: When Your Face Is Your Fortune

Last Updated: 3 December 2012
Article by Ranjan Narula and Manav Kumar

With a thriving film industry in India, the expectation would be that publicity and image rights laws are firmly established. But is this the reality?

The Indian film industry – popularly known as 'Bollywood' – is the largest in the world in terms of ticket sales and annual output. Given their high turnover and the growing fan base of Bollywood stars, it is perhaps surprising that there is no codified law that expressly recognises a celebrity's right to exercise control over the commercial use of his or her name, image, likeness or other distinctive features, such as voice, signature, nickname and sobriquet.

The process of publicising movies also gives rise to image rights, in the form of a celebrity's proprietary rights in and to his or her personality. These are commonly understood to be personal attributes, such as physical or stylistic characteristics, name, photographs and other personal representations.

Recognising an individual's publicity rights is important in order to secure a personal form of IP right, which can provide a source of revenue. This is generally understood to be justified as a reward or incentive for the celebrity's work in creating the intellectual property. This right is assignable and licensable for commercial gain.

Generally, publicity and image rights are analogous to celebrity. They generate economic value – be it news stories and gossip items about celebrities' personal and professional lives, or the lucrative market for celebrity merchandise and endorsements. The popularity of a sporting or film personality is inevitably fleeting. Therefore, any misappropriation of intellectual property should result in strong and immediate action. However, such actions remain uncommon in India. A number of factors are responsible for this:

  • a lack of codified law or guidelines;
  • a huge backlog of cases before the courts; and
  • a lack of financial deterrents in terms of costs and damages awarded for misuse of such rights.

Thus, the Indian legal system is as yet not well developed enough to deal with the modern phenomenon of publicity and image rights. Further, the increasing use of the Internet for communication and advertising means that any misuse can proliferate quickly. Consequently, there is a need for stronger and speedier mechanisms to address these issues.

Legal scenario

Image rights in India arise from the right to privacy and stem from the notion of human dignity as enshrined in Articles 19 and 21 of the Constitution. This approach may be contrasted to that of treating publicity rights as commercial property.

Publicity rights in the form of the right to privacy were first recognised explicitly by the Supreme Court in RR RajaGopal v State of Tamil Nadu (JT 1994 (6) SC 514). In that case, the court opined 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."

Publicity rights are reserved for persons, not events; this was clarified for the first time by the Delhi High Court in ICC Development (International) Ltd v Arvee Enterprises (2003 (26) PTC 245 Del) within the context of the misuse of the Cricket World Cup event name by advertisers that were not registered as official sponsors.

Trademarks Act provisions

No specific provision in Indian trademark law protects publicity and image rights, although the definition of 'mark' in Section 2(m) of the Trademarks Act 1999 does include names. In the absence of any statute to protect publicity and image rights, a wellknown individual whose rights could potentially be misused may resort to a passing-off action in order to protect his or her publicity and image rights. However, a passing-off action requires proof of the individual's reputation, some form of misrepresentation and irreparable damage to the individual.

A passing-off action may be brought for any unauthorised exploitation of a person's publicity and image rights, including goodwill or fame, by falsely indicating an individual's endorsement of products or services. This issue is generally at the crux of most actions that have come up before the courts, as discussed below.

Celebrities can also invoke Section 14 of the Trademarks Act in order to protect unauthorised use of their personal name. Section 14 prohibits registration of a mark that falsely suggests a connection with a living person or a person whose death took place within 20 years of the application date for registration of the trademark. No specific case has been brought on this issue; however, in the Montblanc case discussed below, one of the defences put forward was that the company had sought permission from Mahatma Gandhi's great-grandson to use his name.

Case law

In DM Entertainment v Jhaveri (1147/2001) Daler Mehndi, a famous Indian singer, composer and performer, brought an action against a party that had registered the domain name ''. The Delhi High Court prohibited the defendant from using the mark and domain name, thus recognising the fact that an entertainer's name may have trademark significance.

Another case involving famous Indian industrialist Ratan Tata, chairman of the Tata Group, concerned registration of 'Tata' as a domain name (Tata Sons Ltd v Ramadasoft (D2000-1713, February 8 2001)). The domains were transferred as an arbitral panel ruled in the plaintiff's favour.

In another case before the Calcutta High Court (Sourav Ganguly v Tata Tea Ltd), Sourav Ganguly, a popular cricketer and former captain of the national team, discovered that a well-known brand of tea was cashing in on his success by offering consumers a chance to meet and congratulate the cricketer. The offer implied that the cricketer was associated with the promotion, which was not the case. Ganguly successfully challenged the case in court before settling the dispute amicably.

In 2009 Montblanc released luxury, special-edition pens in India entitled 'Mahatma Gandhi Limited Edition 241' and 'Mahatma Gandhi Limited Edition 3000', which were engraved with Gandhi's portrait on the nib. Tushar Gandhi (Gandhi's great grandson) had given his permission and approval to their release. However, the launch of the pens met opposition under the Emblems and Names (Prevention of Improper Use) Act 1950, which prohibits the use of names and images of nationally important personalities for any trade, business or professional purpose, unless permitted by the government.

Consequently, Montblanc was forced to withdraw its advertising campaign and the pens in question from the market.

In Jaitley v Network Solutions Private Limited ([181(2011)DLT716]) the Delhi High Court upheld the rights of politician Arun Jaitley in the domain name ''. Jaitley argued that he wanted to register the domain name himself. It was alleged that after the domain name had expired, the defendants had not deleted it or transferred it to the plaintiff, but rather transferred it to a domain name auction site. An interim injunction order granted by the court restrained the transfer, alienation or offer for sale of the domain name '' to any third party and the creation of any third-party interest therein.

In Titan Industries Limited v Ramkumar Jewellers ([CS(OS) 2662 of 2011]) the plaintiff engaged noted Indian film actors Amitabh Bachchan and Jaya Bachchan to endorse its range of diamond jewellery sold and marketed under the brand name Tanishq. The couple had assigned all of their personality rights to the plaintiff to be used in advertisements in all media, including print and video. The plaintiff had invested huge sums of money in the promotional campaign. The defendant was found to have erected a hoarding identical to that of the plaintiff, featuring the same photograph of the celebrity couple as displayed on the plaintiff's billboard. As the defendant had neither sought permission from the couple to use their photograph nor been authorised to do so by the plaintiff, the court held the defendant liable not only for infringement of the plaintiff's copyright in the advertisement, but also for misappropriation of the couple's personality rights. The court granted an interim injunction in the plaintiff's favour.

Copyright Act provisions

The Copyright Act 1957 does not define the concept, ambit or scope of publicity and image rights pertaining to an individual. However, the definition of 'performer' in Section 2(qq) – which includes an actor, singer, musician, dancer, acrobat, juggler, snake charmer, lecturer or any person who gives a performance – is important in this context. There is little clarity as to what aspects of an individual's publicity and image rights may be protected under copyright law. Although the Copyright Act protects specific images (eg, photographs, paintings or other derivative works), in order to pursue an infringement action, an individual must prove ownership of copyright in the image and control over the copying of that image. Thus, protection is provided for specific works only. A celebrity cannot exercise a general right to images or recordings that form part of a cinematographic film. Under the Copyright Act, an actor is deemed to have assigned all of his or her rights to a performance if that performance is recorded in the form of a cinematographic film. The producer of the cinematographic film owns the publicity rights to all images of a celebrity within the context of that film. This raises problematic issues if the physical or stylistic characteristics of an actor subsist independently and the general public can distinguish between the actor and the character played by him or her in a movie.

Publicity and image rights have come a long way. However, they are yet to be recognised by way of a statute. Although there have been a few judicial decisions which have accorded protection to celebrities' publicity and image rights through IP laws, they have proved to be insufficient, and there remains a need for a separate regime and statutory protection for publicity rights.

Originally published in October/November 2012 World Trademark Review

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions