Introduction: Branding is More than the Tangible
In the digital age, branding has ceased to be just the implementation of a logo, an advertisement slogan, or some product design. Personal and brand identities are coalescing ever more. Can a human body part, a gesture, a posture or even a facial feature be trademarked? If you thought of the silhouette of Michael Jordan or the posture of Usain Bolt and his lightning bolt-like pose, then the answer is yes. What occurs when the human body turns out to be a commodity per se? It is a legally sophisticated and philosophically disturbing question: Is it possible to have the human body as a trademark?1
Keywords: Trademark, Intellectual Property, Publicity Rights, Human Body, and Law.
I. An Idea of the Trademark
However, before going into the issue of whether the human body can be a trademark, it is imperative to go back to basics in trademark law. A trademark can be used to describe and symbolize the origin of goods or services using a word, sign, phrase, design, or any combination of the above. The trademarks have two uses:
- To avoid confusion and make consumers aware of the origin of a product or service.
- To safeguard the goodwill and reputation of a brand.
The most trivial ones are the logos (swoosh Nike logo), brand names (Apple) and even unique-looking packaging of products (e.g. the Coca-Cola bottle), and trademarks have been treated in this way traditionally. Nonetheless, there has been an expansion of the trademark law and now it comprises so-called non-traditional trademarks, which include audio (e.g., the MGM lion roar), colour (Tiffany Blue), and fragrances.2
A trademark does not only entail tangible goods. The legislation keeps on accommodating abstract and symbolic identifiers that have brand association. The trademarks can invoke emotion, value and identity. Within this context, a human body, particularly a celebrity or an influencer, is an eligible candidate for trademark protection.
II. The Story of the Body as Intellectual Property: The Evolution of Identity in Commerce
When influencer marketing and celebrity endorsement have taken over the world, the human body or rather, a part of it, turns out to be a big vehicle of brand value. The question arises here: when a gesture or an individual part of the body is exceptional enough, can it be used as a trademark?
All this has not been quite new. Performers and athletes have traditionally been leading the commodification of their bodies. Do personality rights or publicity rights mean, essentially, that a person has the right to legally construe the use of his or her name, likeness, image, or other part of the persona?3 The trademark law goes one step further by providing perpetual protection (as long as it is used) and identity to the business asset.4
The body, body language, facial expression, and even dress code appear to have become an extension of a person's brand now that social media has exploded and the gig economy has arrived. The conversion of the distinctive qualities and mannerisms of individuals into a commercial value is not unknown to the influencers anymore. The ability to legally protect these traits via trademarks provides both security and a monetization avenue.
III. Philosophy of the Law and Trademark Registrations
- Jumpman Logo (Michael Jordan)
Among the most famous uses of the human body as a trademark is the Air Jordan logo, or the so-called Jumpman by Nike. The portrait is a silhouette formed after a picture of Michael Jordan making a ballet-like mid-air step with his legs open and one hand holding a basketball.5
Standard copyright protects the photograph, whereas a stylized silhouette enjoys registered trademark protection. A success story of the Jumpman logo is an extraordinary proof of how uncommon bodily posture, when stylized and commercialized, could earn trademark protection: not because it is trademarked by human beings but because such posture announces the origin of the brand.
- The Lightning Bolt Pose of Usain Bolt
The "Bolt" trademark was successfully registered in the United States in 2022 by filing a logo showing his iconic winner pose with one arm pointing to the sky and the other arm extended horizontally.6 This wasn't merely another branding act; this was a straightforward commercial branding attempt to have an identity set as the commercial property. The picture is like a logo, a separate identity of his own, but it cannot be disconnected from his persona.
- Legal Scheming of Kim Kardashian
Even though it is not a conventional trademark, Kim Kardashian publicly defending trademarks to her image, figure, and even voice is an example of the emerging phenomenon of body commodification. She has been sued multiple times by her legal team for the unauthorized display or likeness in games, advertisements, or deepfakes.7
The Kardashians have not patented any body parts and yet have succeeded in using copyright, trademark and publicity as a way of making sure that they have a greater command over the brand enterprise, with much of it resting on their image.
- Other examples of the Entertainment Industry
Entertainers are not concerned about leaving a personality behind them. Singer Taylor Swift has registered some words and phrases associated with her brand. 50 Cent, the post-rapper, has trademarked his name and other visuals.
The case in the wrestling industry is that WWE owns trademarks on their character actions, catchphrases and even stylized motions, which are also a signature to other people. These incidents also advance the boundary of artistic freedom and safe IP.
IV. The Trade mark Law vs. Publicity Rights
A difference has to be drawn here. In most cases, trademarks related to the human body merge with and/or negate the right of publicity. The right to publicity is accepted in numerous jurisdictions, such as the U.S., wherein a participant in society receives rights to his/her name, likeness and persona.8
For example:
- When it comes to running marketing for tennis commodities and if Serena Williams applies for the mark in an official capacity, the tennis star might be able to brand the stance logo.However, the use of her digital image in the game without her consent may also violate her publicity rights, but not the laws of trademark.
This difference is vital: The Trademark law presupposes the utilization in business as an identity mark, and the Trademark rights are based on the person's authority and claim over the unauthorized commercial use of goods.9
V. Indian Legal Perspective: Uncharted Waters
Trademark law in India has been governed by the Trade Marks Act, 1999, where not even a single word about the human body or gestures is said. Conversely, Section 2(zb) defines the trademark quite broadly as "any mark capable of being represented graphically and capable of distinguishing goods or services."10
No jurisprudence or broad personality rights regime has been developed in India yet on whether and how to trademark human gestures or body parts. But parties have understood the celebrity garb of people such as Amitabh Bachchan, Sachin Tendulkar and MS Dhoni in passing off cases. The 2012 Titan Industries v. M/s Ramkumar Jewellers, the High Court of Delhi also ruled that the use of the image of a celebrity in advertisements without the consent of such celebrity can amount to false advertisement.11 This paves the way for Indian celebrities to think that they may want to apply to have distinctive gestures or symbols associated with them registered as trademarks.
There is an augmented demand by legal scholars in India to codify the right to publicity and incorporate non-traditional marks into the trademark law. With the world of marketing moving on to a different mode of touching it with the creation of global brands by Indian celebrities, the need for protection of body-related IPs appears to be increasingly becoming imminent.
>VI. Philosophical and Ethical Implications
1. Human Form Commodification
The commodification and objectification of other people creep into the deepest recesses when it involves using the parts of the human body as a trademark. By trademarking some part of him or herself, are people creating a world that views people as something that can be commoditized?12
Such critics note that the permission of human bodies or gestures as a trademark creates a culture of trademark in identity, which is advantageous to celebrities and influencers but detracts from the collective cultural expression and freedom to imitate.The issue arises as even more urgent when the rights of bodily images or poses belong to companies instead of individuals themselves. Such scenarios reduce a human body to the object of trade, which can be threatening to human dignity and human agency.
2. Commercial Exploitation and Cultural Appropriation
What happens when a cultural pose or gesture is patented has an imminent commonality in history? Yoga pose, a tribal dance step or a traditional gesture of hands, can someone copyright it? These are the questions that have brought in controversies in the world concerning cultural appropriation over personal rights.
One risk is that by trademarking a culturally important body movement, this will result in the privatization of the heritage of the people. It is important to develop a legal framework that allows to differentiation between personal branding and the cultural expression of a particular group.
VII. The Real-World Difficulties of Granting a Trademark to a Human Characteristic
A great impracticality presents itself even where an individual wishes protection over a feature of the body, pose or gesture, to be granted in the form of a trademark:
- Distinctiveness: The gesture or the image should be distinctive and should instantly match with the brand of the applicant.
- Graphical Representation: The pose or movement must be capable of being visually represented.
- Non-functionality: The gesture should not be functional or a natural consequence of activity (e.g., a tennis backhand).
Considering, as an example, a simple gesture of raising a hand, it will likely be too generic, but a choreographed and stylized hand gesture, such as a hand twist performed by Beyonce in her Single Ladies will likely pass as potentially distinctive.13
The second issue is enforceability: the infringement could not be easily proved in court when there is no set logo, only a motion of a human being, which could be defined with the help of a trademark. Further, the bounds of such protection continue to be confusing to the courts, especially where parody, commentary or an artistic purpose is involved.
VIII. Can Ordinary Individuals Trademark Their Bodies?
A lot of this is created around celebrities. What of non-famous people, though? Is anyone capable of trademarking his/her physical expressions or image?
Yes, but only in theory, the person must demonstrate that they can do that first, due to their commercial use and distinctiveness. However, practically, when there is no fame or recognition, the action will hardly serve as a parameter of the brand. It is not with regards to the body, but rather the mind's well-being.14
On the contrary, with TikTok and Instagram Reels being in vogue, common people can be suddenly thrust into the limelight. A dance step or a gesture in the event that it is unoriginal and has been extensively applied in business practices can be trademarked. This creates new opportunities where creators and influencers can express their creativity legally.
IX. The New Age of Personal Branding and the Law
Since we are in the current fashion of a hyper-individualistic digital economy, it is the IP law that is turning out to be a very powerful device in individual branding strategies that can help extend a commercial monopoly. Celebrities trademark not only names and logos but also a certain aesthetics, catchphrases, and even emojis near them.
The concept of human as brand is no longer an abstract one; rather, it is legalized. The trademarking of body gestures, postures or even silhouettes is only the new frontier.15
Here, legal representatives involved in future planning now recommend celebrities and influencers to devise a complete range of IPs that include trademark, copyright, domain names and design rights.
Conclusion: Is the Human body a trademark, a Legal Fact or Philosophic Paradox?
Hence, is the human body a trademark? Yes, but only in that particular set of circumstances. A body performance, pose or line drawing was designed to represent what products or services a company sells and distinguish them on the commercial scene and pass the distinctiveness test; it may be possible as a trademark.
Nevertheless, legal nitpicking cloaks behind the even-bigger issues of culture and morality. Each step further on the way to the day when the identity itself will be considered the property of the company we should ask ourselves, are we preserving the creativity and the manner in which every person is doing things or are we in fact leaving the imprinted death sentence on the humanity as it is and are we treating ourselves as goods?
Intellectual property rights are not the only issue in trademarking the human body; it is a game that shows our changing dependence on ourselves, commerce and the limits of owning. Law is changing to support these new forms of identity and we have to find a way to optimize protection over openness, innovation instead of ethics, and branding over humanity.
References
I. Statutes
- Trade Marks Act, 1999, Sec. 2(zb) (India).
- Lanham Act, 15 U.S.C. § 1051 et seq. (U.S. Trademark Law).
- Right of Publicity (U.S. State Law — not federally codified; varies by jurisdiction).
II. Cases
- Titan Indus. Ltd. v. Ramkumar Jewellers, 2012 SCC OnLine Del 2387.
- Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953).
- White v. Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992).
III. Trademark Examples (Registered or Public Filings)
- Nike's "Jumpman" Logo, U.S. Trademark Reg. No. 1632593.
- Usain Bolt Silhouette Trademark, U.S. Trademark App. Serial No. 97560452 (filed Aug. 17, 2022).
IV. Secondary Sources (For Reference in Law Review Notes or Footnotes)
- Jennifer E. Rothman, The Right of Publicity: Privacy Reimagined for a Public World (Harvard Univ. Press 2018).
- Stacey L. Dogan & Mark A. Lemley, What the Right of Publicity Can Learn from Trademark Law, 58 Stan. L. Rev. 1161 (2006).
- Madhavi Sunder, IP3, 59 Stan. L. Rev. 257 (2006).
- Peter K. Yu, The Cultural Foundations of Intellectual Property, 79 Tex. L. Rev. 1 (2000).
Footnotes
1. 15 U.S.C. § 1127.
2. World Intellectual Property Organization, WIPO Report on Non-Traditional Marks, WIPO/STrad/INF/1 Rev.2, at 10–13 (2015).
3. Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953).
4. Jennifer E. Rothman, The Right of Publicity: Privacy Reimagined for a Public World (Harvard Univ. Press 2018).
5. Nike, Inc., U.S. Trademark Reg. No. 1632593.
6. Lauren Thomas, Usain Bolt Applies to Trademark His Signature Victory Pose, CNBC (Aug. 24, 2022), https://www.cnbc.com/2022/08/24/usain-bolt-applies-to-trademark-his-victory-pose.html.
7. Kim Kardashian v. iHandy Ltd., No. 2:19-cv-04927 (C.D. Cal. 2019).
8. White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992).
9. Stacey L. Dogan & Mark A. Lemley, What the Right of Publicity Can Learn from Trademark Law, 58 Stan. L. Rev. 1161, 1170 (2006).
10. Trade Marks Act, 1999, § 2(zb) (India).
11. Titan Indus. Ltd. v. Ramkumar Jewellers, 2012 SCC OnLine Del 2387.
12. Madhavi Sunder, IP3, 59 Stan. L. Rev. 257 (2006).
13. Beyoncé Knowles-Carter, U.S. Trademark App. Serial No. 85098942 (attempted registration of "Blue Ivy Carter").
14. Vatsala Singh, Publicity Rights in India: A New Frontier in Personality Protection, 6 NUJS L. Rev. 523 (2013).
15. Shyamkrishna Balganesh, The Obligatory Structure of Copyright Law, 125 Harv. L. Rev. 1664 (2012).
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