Character Merchandising

CHARACTER
MERCHANDISING
AND TRADEMARK
WHAT PRODUCT WOULD YOU CHOOSE?
Image Source- Google

images.
INTRODUCTION
• The Movie / Entertainment Industry is one of the fastest growing business in the world, as also in India
• This growth is owing to the huge increase in accessibility to the cinema screen to almost all economic
sections of Indian society.
• Character merchandising has emerged as one of the most lucrative methods of popularizing different
forms of entertainment, with an estimated $2.5 billion industry in India.
• At the heart of the principle of character merchandising lies the belief that the persona of every character
is a merchantable property and, therefore, the person owning the character ought to have the right to
control its commercial exploitation.
DEFINITION
• Character merchandising can be defined as the adaptation or secondary

exploitation, by the creator of a fictional character or by a real person or by one or
several authorized third parties, of the essential personality features (such as the
name, image or appearance) of a character in relation to various goods and/or services
with a view to creating in prospective customers a desire to acquire those goods and/or
to use those services because of the customers’ affinity with that character.
• -WIPO
• Another way of defining Character Merchandising would be
to state that it is an advertising technique that uses the
popularity of the character concerned as a vehicle for
selling the products.
WORKING
Image Source- Google images.

HISTORY
• As an organized system, character merchandising originated and was initiated in

the United States of America in the 1930s in the Walt Disney Studios in
Burbank (California). When this company created its cartoon characters
(Mickey, Minnie, Donald), one of its employees, Kay Kamen, established a
department specialized in the secondary commercial exploitation of those
characters and, to the surprise of most, succeeded in granting an important
number of licenses for the manufacture and distribution of low-priced mass
market merchandise (posters, T-shirts, toys, buttons, badges, drinks).
TYPES
CHARACTER MERCHANDISING
Fictional and Cartoon Personality

Image Merchandising
Character Merchandising Merchandising
PERSONALITY RIGHTS
• In the last two decades, the Celebrity industry has grown remarkably in power,
organisation and sophistication. As the use of one’s image or personality for the
marketing of goods and services has become more and more valuable it’s loop
side has lead to vulnerability.
• In India, unlike West, we have few cases where Celebrities Personality Rights
have been acknowledged by the courts.
TITAN INDUSTRIES LTD.V. M/S RAMKUMAR JEWELLERS ; 2012-

CONTD…
• Sachin Tendulkar, Kajol, Shahrukh Khan, Baba Ramdev, chef Sanjeev

Kapoor, Amitabh Bachchan, Jaya Bachchan, Katrina Kaif, Kareena
Kapoor, etc., have registered their names as trademarks.
• Class 9, 28,35 and 42.
DISNEY ENTERPRISES INC & ANR.VS SANTOSH
KUMAR & ANR

REMEDIES
• The legal protection of a fictional character is generally governed by name, appearance and
physical attributes and personality traits i.e. the characterisation.
• While traders agree on taking up license by paying royalty to the trademark owner for using
the character in its goods, others engross the image of the character in their goods unlawfully
and misrepresent to the consumers and also deprive the trademark owner of his/her
legitimate rights.
• This leads to Passing Off action (if the character is unregistered) or infringement
claim (if the character is registered) under trademark law.
Remedies
Passing Off (for Infringement Claim

unregistered TM) (for registered TM)
INFRINGEMENT CLAIM
• The owner of a trademark, has the exclusive rights over the same,
including the right to commercially exploit it and to further license the
trademark as a means of commercial exploitation. As per Section 29 of
the Act, a registered owner of a trademark can prevent others from using
an identical or deceptively similar mark without permission on their goods
or services for sale.
• Sections 102 and 103 are the penal provisions of the said Act states that, where falsifying
a registered trademark or falsely applying a registered trademark on goods and services
without approval of the owner is an offence and is punishable with imprisonment and
penalties. Where a person wishes to use a registered trademark in relation to his goods
or services, he has to seek permission from the registered proprietor of the trademark.
PASSING OFF
• The point of action in passing off is to prevent the consumer from buying the defendant’s product or service in the
mistaken belief that it is made or operated by the plaintiff
• Passing off protects the proprietary right of the plaintiff in the goodwill or reputation of a business likely to be
injured by the defendant’s misrepresentation.
• Passing Off requires any deceptive connection or misrepresentation between the defendant’s and plaintiff’s
business.
• To be successful the plaintiff in a passing off action has to prove three things:
• (a)Goodwill and reputation; (b) Misrepresentation and confusion and (c) Damage.
CONCLUSION
• From a legal standpoint, now, as never before, there is a dire need to put in
place a robust framework for regulating the sale of character merchandise. In
a bid to buy the cheapest available merchandise, customers often fall prey to
the deceptive tactics of those who sell counterfeit merchandise. As neither
the Indian Copyright Act nor the Indian Trade Marks Act clearly delineates
the norms governing character merchandising, it is an arduous task to bring
the sellers of counterfeit merchandise to book.

Character Merchandising

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CHARACTER

Image Source- Google

• Character merchandising can be defined as the adaptation or secondary

Image Source- Google images.

• As an organized system, character merchandising originated and was initiated in

Fictional and Cartoon Personality

Image Source- Google images.

• Sachin Tendulkar, Kajol, Shahrukh Khan, Baba Ramdev, chef Sanjeev

Image Source- Google images.

Passing Off (for Infringement Claim

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