Understanding the scope behind the use of trademark protection in the Indian film industry

India is a place that offers a diversity of things and one thing which plays a major role in glorifying India at world cinema is our Indian film industry. It is without a doubt an interesting fact that India produces the largest number of films every year with approximately 1000 or more movies releasing every year to entertain the audience.[i] It has employed around 3 million people going by the figure and these numbers are expected to grow further in the coming time.

The rapid growth has also brought some legal consequences along with it. There are many issues with respect to design, copyright, trademark, etc in the film industry. There are several instances where a matter reaches court regarding the dispute between the content which becomes the matter of dispute between the parties. In this article, we will understand the scope behind trademark registration for film titles.

The title of the film is a very important aspect as it signifies the film to the connected audience. The producer and director of any particular movie go through a long thought process in deciding what should be the title of that film so that it can create a memorable impression among the audience at large. Whenever the title is decided the audience taste, interest, and demand of the present time are seen to bring out a successful film.

If we talk about India here the title of the film does not get protection under the copyright laws because the title does not come within the ambit of literary works like drama, music, artistic performance, cinematographic work, sound use in films, etc.[ii] Thus it is clear that the title does not come under literary work and this title cannot be registered as copyright.

In the case of Krishika Lulla and Ors. v. Shyam Vithalrao Devkatta and Anr,[iii] in this case, Hon’ble Supreme Court held that Desi Boys as a film title could not be considered under Copyright Act. The court while interpreting Section 13 of the Copyright Act said that title is not the classify in the category of literary work that could be copied. It should further be registered as a trademark and not copyright.

The other option that rests with the filmmakers is to register the title and which will be protected under Trademark Act 1999 the objective behind registering the title as a trademark is to differentiate the title from the exclusive person to that of others and meeting all the requirement trademark gets registered.

If we talk about the process how we get any trademark registered for film title is through service mark which is provided under Clause 41 specifically under 4th schedule of Trademark Rules 1999.[iv] It covers film production, radio entertainment, studios, theatre, etc. The act mentions that Class 1 to 34 goods are mentioned which comes under trademark whereas Class 35 to 45 service is mentioned and in this category film title is registered under Trademark. [v]

To understand that why film title is registered under the trademark we need to understand that film title should be based on generic criteria as we cannot be able to distinguish them. The unique nature of the film title attracts the audience and it is used to create an impression so there must be a distinction in the title of the movie.

To remove the parody the Delhi High Court in the famous case of Warner Bros and Entertainment v. Harinder Kohli and Ors [vi] where it was held that the movie title Hari Putter creates the false impression in the minds of the audience that the movie titles seem like Harry Potter. The defendant’s claim was rejected by the court to release the movie with the former title as mentioned.

INVOLVING MOVIE TITLES WITH FILM INDUSTRY ASSOCIATION

Nowadays there are many film producers and writers who are looking up to film industry association they register their work in this association this is done to check before any film title gets registered it does not look similar to any other film title which had already been registered with the same title. Here it is important to understand that mere registering with film industry associations does not give the right to association for film title ownership. Some film industry associations like the Association of Motion Pictures and Television Program Producers [AMPTTP], Television Producer’s Guild of India, etc.[vii]

In the case of Anil Kapoor Film Co Pvt Ltd. v. Make Day Entertainment and Anr there was the question put forth by the plaintiff that the title of the film Verre ki Wedding has similarity with the title of the film Verre Di Wedding and the fact that later titled film is registered under IFTPC the SC held while rejecting plaintiff application that another film which will be coming in future with some different cast is not used as deceiving means, the matter was later settled and Veere Di Wedding later registering itself as a trademark for the title of the film.[viii]

The title of the film getting recognized as a trademark is important so there no kind of ambiguity in the minds of people watching it. A film can get trademark even if it has not been released there are ways by which an image can be created among the audience by way of promoting it more and more in the market, the length of film, trailer, by monitoring the view work and its popularity in the audience.

There are many different films like 3 idiots, Padman, Jodha Akbar, etc are the movies with single title movies which have got the trademark registration while on the other hand, we have movies which involve franchise like Goolmal, Housefull, Dabangg, Dhoom, Singham, etc these movies have certified trademark registration as in this case production house is the same.[ix]

An Indian court has witnessed many instances where the secondary meaning was asserted by the court. In the famous case of Kanungo Media Ltd v. RGV Film Factory and Ors[x] where the Delhi High court has made a clear distinction in the title of the series and single titled film here in this case the plaintiff filed a case against Ram Gopal Verma where the plaintiff claims for providing a permanent injunction on the title of film “NISHABD” it was held that plaintiff film cannot crate confusion because it has acquired secondary meaning.

In the case of Biswaroop Roy Choudhary v. Karan Johar[xi] in this case plaintiff file suit against the defendant in the Delhi High Court. Here the defendant has used the movie title as “Kabhi Alvida Na Kehna” in this plaintiff wanted permanent injunction over the defendant but here the court favoured the defendant as the title of the movie was registered with the Film and Television Producers Guild of India. Here in this court dismissed the petition by stating that words that have common usage should be used with utmost care and which party has used this exclusive right in a longer way acquires the trademark over the title.

CONCLUSION

By analyzing the different aspects, we found that the film title carries a special significance as far its identity is concerned and the trademark creates protection in distinguishing from any other film which tries to use the same title for attracting the audience. In this article, we saw how different movie series and single titled movies are protected not only this but also we saw through various cases how the use of a trademark is becoming the easier way for producers and writers to keep their title of the movie authentic.