India: Disney's Trademark Woes: No Worries?

Last Updated: 17 January 2019
Article by Sharmeen Shaikh
Most Read Contributor in India, January 2019

The year of 2019 has been regarded as the most promising year. It started with Disney's magnum opus announcement to deliver two motion pictures consecutively. The much loved 'Aladdin' and the popular 'Lion King', is all set to captivate the audience in the coming months. But, is everything hunky dory in the Disney world?

In the recent news, a brazen petition was undertaken by Mr. Shelton Mpala, to direct the Disney Company from relinquishing the trademark of the phrase "Hakuna Matata." The term is used in the movie "Lion King" by the characters of the movie 'Timon' and 'Pumba', as lyrics of a song. The term, in Swahili means "no problem" or "no worries." Disney had initially used the term in the 1994 animated movie "Lion King" and applied for a trademark of the same, which was granted to them, by the government of USA, in the year 2003. The term not only gained humungous popularity on a global scale, but also, it was extensively used for character merchandising in the USA.  However, it has come in the limelight recently, after the announcement of the much-awaited motion picture, with the same name.

What is a lesser known fact is that the term was first used in the song "Jambo Bwana" by the Kenyan band, Them Mushrooms, in the year 1982, which was a platinum hit. The catchy phrase was then picked up by Disney, for an animated movie showcasing African wilderness and habitat.

According to Mr. Mpala, it is unethical for Disney to trademark a phrase that is used across several countries in Africa like Kenya, Uganda, Tanzania, Democratic Republic of Congo, etc. His petition has been signed by more than 52,000 people, in an attempt to put an impediment on the Western culture to stop the unethical copy pasting and pilfering of other cultures and tradition. He accused Disney of gross misappropriation of culture and questions the fact as to how, a huge American company like Disney can assert an unlawful claim over something that is not indigenous to their country or culture?

This isn't the first time that Disney has attempted to trademark, without having appropriate right to do so. In the past, they tried to gain exclusive right over the phrase Dia de los Muertos (aka the Mexican Day of the Dead festival) with respect to their movie "Coco" which was set in a Mexican festival and culture. The phrase was to be acquired specifically for character merchandising but a huge uproar regarding the acquiring of the exclusive right, especially from the Mexican community mounted immense pressure on the company and ultimately, the company had to drop the efforts to do so.

The question here is: is it really an unethical practice by Disney to trademark the phrase? The exclusive right over the use of the term was granted to the Company several years ago. So, why wasn't there a hue-cry over it, back then? The issue here seems to be more of moral, rather than a legal one. The animated movie has been in existence, and on loop, since several years now. Be it movies, adaptations, plays, musicals, the movie and the phrase have been on the tip of the tongue of every person who was or is being exposed to this story or movie. So, why is there a sudden hullabaloo regarding the technical re-use of the phrase, by a company who has the legitimate right to use it? Why weren't the objections of western pilfering and the gross misappropriation of culture, raised initially? From an unbiased point of view, Disney has the right and the means to use what is rightfully and legally theirs. The allegations of the act having a colonial hint, is not applicable in today's time. On the contrary, the use of words such as "colonialism" is visible as an attempt to morally undermine and emotionally blackmail a Company into non-usage. This too, would be heralded as unethical and an unfair fight. Also, there is a possibility of the presence of a mala fide intention to cash in the popularity of the famous movie and company, in an attempt to stay in the limelight of media.

Conclusion

In the light of the above developments, some may opine that no matter how noble the efforts may seem, it might be a little too late by individuals at large, to put an impediment on the use of the phrase, because as per the Latin phrase "Vigilantibus Et Non Dormientibus Jura Subveniunt" the law helps those who are vigilant with their rights and not those sleep thereupon.

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 Mondaq.com.

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

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
 
Email Address
Company Name
Password
Confirm Password
Position
Industry
Mondaq Newsalert
Select Topics
Select Regions
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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