Date: 15/03/2022

Submission by: Aditi Morale 

This write-up reviews the article titled “Trademarking Signature Poses/Looks – A

Progressive Protection of Individuality” published on SpicyIP. The said article analyzes the
scope of inclusion of body parts and “signature looks” under the trademark protection regime
and concludes that in so far as it is possible to distinguish the said looks/poses/body parts
from those of others, are capable of being graphically presented and have been used for
successfully merchandising the person to whom such “look” belongs to, such trademark
protection would be possible. 

However, in this piece, I argue against the crux of this article by submitting that such
inclusion of body parts/signature looks et cetera under trademark protection regime
would dilute the purpose and original intent of trademark related provisions, normalize
protection of generic characteristics as “Intellectual Property” and thus set a string of
dangerous precedents. 

One also has to take into consideration the fact that the action of infringement or passing off
has a recourse in Indian law in the form of prosecution and criminal penalty. In India, the
infringement of a trademark is a cognizable offence which means that the infringer may also
face criminal charges along with civil charges. It is also not required by the Indian law for the
trademark to be registered for the institution of civil or criminal proceedings. The offence so
constituted is punishable with imprisonment for a term which shall not be less than six
months but which may extend to three years and fine which shall not be less than INR 50,000
but may extend to INR 200,000. Generalizing protection for normal and generic
poses/looks and body parts that almost all of us possess would make it difficult for the
so-called infringers to seek justice and will expose many credulous individuals to
criminal action. 

As discussed in the aforementioned article itself, Indian legal jurisprudence with relation to
Intellectual Property recognises the “publicity rights” and have time and again protected
rights and characteristic features of individuals through judicial pronouncements, thus
proving further that any such impersonation of celebrities through copying of signature
looks/poses is sufficiently protected under current law. It is also obvious that such
impersonation, more or less, contributes to publicity and fame for such artists in the known
fashion of “Imitation being the sincerest form of flattery”. And even when such artists do not
wish to be emulated or have their signature looks/poses copied, Indian Law protects their
interests sufficiently through personality rights granted under Article 21 of the Constitution of
India acknowledging the right to privacy and right to publicity.
This can be seen through many important judgements related to personality rights such as the
one in ICC Development (International) Ltd. vs. Arvee Enterprises. In this case, the Delhi
High Court in 2003, held that:
“The right of publicity has evolved from the right of privacy and can inhere only in an
individual or in any indicia of an individual’s personality like his name, personality trait,
signature, voice. etc. An individual may acquire the right of publicity by virtue of his
association with an event, sport, movie, etc”.

Further, in Titan Industries vs. M/s Ramkumar Jewellers, the defendant copied the
Plaintiffs’ advertisement featuring Mr. Amitabh Bacchan and Mrs. Jaya Bacchan without
taking any consent or permissions from the Plaintiff or the celebrity couple. Herein, the Delhi
High Court granted the permanent injunction and held that:
“When the identity of a famous personality is used in advertising without their permission,
the complaint is not that no one should not commercialize their identity but that the right to
control when, where and how their identity is used should vest with the famous personality.
The right to control commercial use of human identity is the right to publicity”. 

The ratio in these two cases was once again relied upon in the case of Mr. Shivaji Rao
Gaikwad (aka Rajinikanth) vs. M/s. Varsha Productions, further strengthening publicity
rights for celebrities in India.

Conclusion:
In this article, I reviewed a write-up arguing in favour of protection of individuality through
inclusion of bodily characteristics/signature poses/looks under the scheme of trademark
protection in India. I conclude in this article that such inclusion of body parts, features or
signature looks and poses as trademarks would classify common and generic
traits/features/looks/poses as intellectual property, thereby defeating the purpose of trademark
protection provisions and set a dangerous precedent.
Given that the action of trademark infringement is a criminal offence in India, such a step
would pose a threat to individuals who might be innocuously imitating such generic traits or
looks. Even in cases of willful acts of imitations, I argue that the publicity rights granted to
celebrities under Indian legal jurisprudence are enough to protect their personality and related
traits and that these traits of personhood do not need to be commodified by their inclusion
under trademark protection regime. 

Bibliography:

 Kedar Dhargalkar, Trademarking Signature Poses/Looks – A Progressive Protection

of Individuality, SPICYIP, March 3, 2022, https://spicyip.com/2022/03/trademarking-
signature-poses-looks-a-progressive-protection-of-individuality.html

 ICC Development (International) Ltd. vs. Arvee Enterprises, 2003 (26) PTC 245.

 Titan Industries vs. M/s Ramkumar Jewellers, 2012 (50) PTC 486 (Del).

 Mr. Shivaji Rao Gaikwad vs. M/s. Varsha Productions, 2015 (62) PTC 351 (Madras).