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.

In association with
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
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

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