Recently, Turkish Olympic pistol shooter Yususf Dikec, who won a silver medal in the 2024 Summer Olympics, has filed for trademarking his shooting stance. The relaxed stance with one hand in a pocket has gained enough popularity to be printed on a T-shirt, mug, or any other commercial product. This brings to light an intriguing aspect of signature poses. To begin with, it’s important to understand what signature stances are, as they play a vital role in shaping personal branding.
What is a signature pose?
A signature pose is a well-defined stance or posture closely aligned with an individual’s brand. This well-defined posture can create a long-lasting and memorable impression in customers’ minds, which in turn fuels higher brand loyalty and identity. This is well exemplified by the fact that Usain Bolt’s lightning bolt posture, Beyoncé’s posture of placing her hand on her hip, and posture when he stretches his arms across are some of the classic signature poses that have branded the person. Therefore, these poses have been in great emulation by admirers and supporters to reinforce their connection with the respective celebrities. These, in turn, eventually become an important entity in the visual language of popular culture.
Uniqueness and general recognition are some inherent strengths of these signature stances. However, the question of whether intellectual property would protect them becomes rather complicated. For example, determining the extent to which the pose must depict uniqueness to receive the protection of intellectual property law remains subjective and complex[HT1] .
Trademarking Signature Pose for Commercialisation under The Trade Mark Act, 1999
The Trademark Act protects the signature pose in India when used as a mark. The term “mark” is defined under Section 2(zb) of the act as any visual symbol that is capable of being represented graphically and can distinguish the goods or services of one person from those of others.
When an attribute of a person is being used to differentiate a product or commercialise it, then the consent of the person is much needed at the time of registering the trademark in India. One can obtain the consent of the person through FORM TM-C.
Unconventional Mark
The unconventional form of trademark refers to marks that are not traditional, such as 3D shapes, colour, sound, motion marks, and many more. The signature stance is considered an unconventional form of trademark and can be registered as a device mark in Form TM-A. A device mark is a trademark that uses visual design or image to differentiate a product from others. It includes logos, symbols, emblems, abstracts, etc.
A signature move can also be registered as a motion mark in India by submitting the graphical sequence or pictorial sequence showcasing the movement and change in position. However, this method of registration sometimes can cause challenges due to it not properly depicting the intended pose or movement that the applicant seeks to trademark. The European Union and the United States are some jurisdictions that accept video files to register motion trademarks, which makes it easier for the examiner to examine a signature pose.
Nokia Corporation’s Shaking Hand Motion mark was the first motion mark that was registered as a trademark in India in 2003, which further strengthened Nokia’s tagline, “Connecting People.”
Essentials for unconventional poses to be registered as trademarks under Section 18 of the Act:
1. Distinctiveness
To qualify for trademark registration, a mark should be distinctive enough to distinguish the product from others. Thus, if the pose of a person or celebrity is sufficiently distinctive to be an identifier of the source of goods or services, it can be registered as a trademark. Section 9 of the act states non-distinctiveness as a ground for refusal of trademark.
For example, the Korean finger-heart pose, popularised by the Korean actress Kim Hye-soo in 2010, is very less likely to get protection because it is not associated with a single celebrity but rather with the whole of South Korean culture, thus it will fail to provide the much-needed distinctiveness.
2. Graphical Representation
Rule 2(1)(k) of the trademark Rule, 2017 made the graphical representation highly important for any original work to be registered under the act. Thus, a pose must also be represented graphically in a way that conveys the distinctiveness of the stance being claimed as a trademark. This can include photographs, drawings, or other visual representations that accurately depict the pose in question.
In addition to the above, it shall also fulfil all the statutory obligations required by the Trademark Act to be successfully registered. Any mark which is against public morality, deceptive, descriptive, or generic, whether it be a signature pose or any other mark, cannot be registered under the Trademark Act of 1999.
The EUIPO (European Union Intellectual Property Office) accepts the registration of signature poses even if they are not graphically represented; the only requirement is distinctiveness, association with the person trademarking it, and using it for the purpose of branding.
Copyright Act, 1957
The copyright refers to the bundle of exclusive rights granted to the creator of an original work under Section 14 of the act. Such rights include the right to reproduce, distribute, and display the work. It is worth noting that copyright protection comes into operation once the work is created; however, a value enhancement is attached to the registration with the Copyright Office in that it allows for other actions, such as suing for statutory damages.
A signature pose or stance cannot be copyrighted under the copyright act unless the same has been captured in some artistic way, for instance, a sketch or a photograph; then that particular manifestation of an idea can be protected under the copyright act, and the artist or the photographer will be the first owner of the work.
The famous Nike Jumpman logo, which at first was a photo of Michael Jordan during a dunk for a Nike promo, later became a brand logo for all Jordan merchandise. Nike initially copyrighted the original photograph, graphically represented the part of the picture, and trademarked it to differentiate their Jordan merchandise. Thus, it strengthened their protection further. This demonstrates how copyright can evolve into trademark protection when a particular image or design captured in a unique artistic way is transformed into the trademark of a brand.
Case Summary: Rentmeester v. Nike, Inc., No. 15-35509 (9th Cir. 2018)
Facts: In 1984, Jacobus Rentmeester clicked a classic shot of Michael Jordan holding a basketball in his left hand and soaring towards the basketball ring. The shot appeared in Life magazine. Rentmeester was approached by Nike, Inc. to ask for permission for the picture to be used on a slide show presentation, which Rentmeester accepted but only under a limited license. Nike afterwards commissioned the same posture in their photograph of Jordan, one that was used to make the Jumpman logo.
Litigation: In January 2015, Rentmeester filed a case against Nike for copyright infringement. Rentmeester argued that Nike’s use of its photograph and Jumpman logo breached his photo. Still, the Ninth Circuit Court of Appeals affirmed the lower court’s ruling and stated that the two photos were not substantially similar as a matter of law.
Analysis: The order from the lower court to dismiss Rentmeester’s lawsuit was made because of the substantial similarity test, an important factor for copyright violation cases. In US law, the substantial similarity test is a test used to assess whether enough copyrighted work has been appropriated by the defendant. To prove that infringement had occurred, Rentmeester would have to attest that Nike copied out sufficient of the protected content in his photo to amount to a copyright violation. The copyright act goes quite further to state that it is only the original works and the manner of expression of the idea, which are protected but not the idea itself.
The trial court was of the opinion that the photograph taken by Rentmeester was not only an original but also owned a copyright in the same. However, Nike’s Jumpman picture is not sufficiently similar to that of Rentmeester and the protected elements, so an inference of infringement cannot follow.
This case illustrates the limits of protection for copyright for a certain posing style. Copyright does not extend to ideas but to the creativity and execution of the idea by the artist. Unlike the images from Nike that presented Michael Jordan at the height of his career and celebrity status, the Rentmeester photo depicted a completely different narrative about the said athlete. Therefore, although the concept of Rentmeester’s mid-air shot of a basketball player was indeed creative, the concept of a suspended basketball player was not eligible for copyright. This raises issues in trying to extend copyright protection to signature stances, which are in the category of general ideas as opposed to being fixed as an expression. The court concluded that the pose itself lacked any sufficient originality to merit protection from Nike’s otherwise infringing photograph, which was taken independently and without permission.
Conclusion
In conclusion, those who desire to use the pose for commercial purposes as associated branding will get more protection through the registration of a trademark, even when the pose has been artistically featured first. Additionally, copyrighting the pose together with trademarking will provide a whole package of protection, especially in cases where the person does not want others to use it commercially. It is through this approach that the distinctiveness and exclusivity of the signature pose can be protected within the Intellectual Property Law.
Authored by: Ms. Alina Shaheen
A 4th-year law student at Dr. Bhimrao Ambedkar Law University, Jaipur
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