SSRana Newsletter 2022 Issue 19

By Shilpi Sharan and Nitika SinhaPersonality rights are interpreted as the personal property of a well-known celebrity to guarantee his/her enjoyment of his own sense of existence¹. Personality rights are a celebrity’s personal rights to use and control the use of their physical attributes in promotions and at any other place for which the celebrity’s consent is required.

The Hon’ble Delhi High Court in a recent case titled Amitabh Bachchan V. Rajat Nagi & Ors. passed an omnibus interim order to restrain the Defendants at large from infringing the personality and publicity rights of ace Bollywood actor Mr. Amitabh Bachchan. The present judgment restraining the infringement of the publicity rights of the Plaintiff celebrity is a noteworthy judgment and the Court’s obiter dictum in the case will help in contouring the legal protection accorded to personality rights in India.

Brief facts of the case:

The present suit was filed by the legendary actor Mr. Amitabh Bachchan, alleging that the Defendants were violating his “publicity rights” by using his personality traits for commercial purpose without authorization. The Plaintiff alleged that the Defendants were operating websites and mobile applications by using Plaintiff’s photograph and other characteristics to gain popularity among the public and entice the customers to download their application.

It was alleged that Defendant was using Plaintiff’s picture and circulating it on WhatsApp along with infringing text about the famous game show Kaun Banega Crorepati (KBC), including lottery scams associated with the game show with the intention of fraud to general public. It was also alleged that the Defendants’ created a website with the domain name www.amitabhbachchan.com to sell infringing products carrying the characteristics of the Plaintiff.

Court’s Order and Observation

The Hon’ble Delhi High Court after analyzing the prima facie evidence and arguments advanced by the Plaintiff, passed an ad-interim ex-parte order of injunction to restrain the sellers from using his face, name and voice to lure customers to redirect to their websites and mobile applications, thereby creating an assumption of association of the actor and the impugned websites/ mobile applications².

The Hon’ble Court also held that if such activities were not restrained then Amitabh Bachchan being a popular personality would suffer irreparable loss to his reputation.

The Court in its interim order also directed the Department of Telecommunications and Union Ministry of Electronics and Information Technology requiring ISPs (Internet service providers) to remove the list of links and websites that infringe the personality rights of Mr. Bachchan and ordered telecom service providers to block all contact numbers used to circulate these messages through WhatsApp which infringed the rights of the Plaintiff.

The matter is scheduled for hearing in March, 2023.

Author’s remarks

Infringement of celebrity’s and famous personalities’ personality rights have become a chronic practice and companies and individuals many times invade such rights of celebrities with the intention of overriding the goodwill associated with such famous personalities. However, many times, the infringer themselves are ignorant as to where a line should be drawn?

Though there is no specific legislation addressing this issue, however, the Indian Judiciary through plethora of cases have protected the rights of personalities against wrongful gain by infringers while using the personality traits or photos of celebrities on their products to form an unauthorized presumption that the celebrities are associated with their brands.

This is not the first time that the legendary actor has been confronted with violation of his personality rights. Earlier in the case of Titan Industries Ltd v. M/s Ramkumar Jewellers, the Hon’ble Delhi High Court had protected the personality rights of Mr. Bachchan and his wife Jaya Bachchan, wherein the Defendants were using the pictures of the Plaintiffs to endorse their brand without their consent.

Indian Judiciary’s Stance on Protection of Personality Rights in India

The Delhi High Court in the Titan case had described personality rights as “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 Hon’ble Court in the case also stated that the proof of identification of whether the personality rights of a celebrity have been infringed or not requires only a simple comparison of Defendant’s use of Plaintiff’s identifying features, that is sufficient to make a case of inference of identifiability⁴.

Last year, the intriguing issue pertaining to PV Sindhu’s personality rights came into limelight after her win in the Olympics, wherein allegedly several brands used her name and picture to advertise and market their products and services in media.

For instance, such posters contained the picture of PV Sindhu along with their own logo, giving a presumption that the player is associated with their company. Reportedly, the representatives of the player sent legal notices to almost 20 brands to remove Plaintiff’s picture from their respective posters.

Similarly, in the case of D.M. Entertainment Pvt. Ltd. v. Baby Gift House⁵, popular singer Daler Mehndi sued sellers of dolls singing lines of his popular rhythms. The singer alleged that the acts by sellers are a breach of his rights to commercially exploit his persona and identity. He alleged that Baby Gift House was selling Dolls with the likeness of the singer’s personality in the markets of Delhi after importing them from China. The Court held that the singer enjoyed a right to publicity and protection against the unauthorized commercial gain to others using his identity and that the said act of sellers would mislead the consumers into believing that the singer endorsed the product in question.

As the rights of Mr. Bachchan have been infringed again by third parties it will be interesting to see what guidelines and observations are laid down by the Court in order to protect the Plaintiffs’ right to publicity or personality rights. It will also help in rendering a clarity about the extent to which such rights can be exercised by celebrities and personalities.

Himang Garg, Intern at S.S. Rana & Co. has assisted in the research of this article.

[1] Lucy Rana and Shilpi Sharan, ‘Protection of Personality and Image Rights in India – Trademark – Worldwide’ (www.mondaq.com12 July 2022) Protection of personality and image rights in India accessed 28 November 2022.

[2] CS(COMM) 819/2022.

[3] 2012 SCC Online Del 2382

[4] Titan Industries Ltd v. M/s Ramkumar Jewellers 2012 SCC Online Del 2382.

[5] CS(OS) 893/2002.

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Surrogate Advertising- Law and Cases- India

Let’s take a moment for “Moment Marketing” and recent Olympics Saga!!

The Ministry of Consumer Affairs, Food and Public Distribution vide its notification dated November 02, 2021 had notified the Legal Metrology (Packaged Commodities) Amendment Rules, 2021 as per which the following amendments were introduced and were to come in force from April 01,2022–

1. Packaged grouped together for retail sales must comply with each mandatory declarations.
2. The unit price is to be declared on package along with the MRP in Indian Rupees.
3. Format prescribing the manner in which Unit price is to be declared on every package.

However, the aforementioned department vide its notification dated March 28, 2022 further amended the Legal Metrology (Packed Commodities) Rules, 2021. The said rules were to come into force on October 01, 2022 as per which the following amendments were to be effective-

1. The unit sale price in rupees, rounded off to the nearest two decimal place, shall be declared on every pre-packaged commodities as follows:

• i) per gram where net quantity is less than one kilogram and per kilogram where net quantity is more than one kilogram;
• ii) per centimeter where net length is less than one metre and per metre where net length is more than one metre;
• iii) per milliliter where net volume is less than one litre and per litre where net volume is more than one litre;
• iv) per number or unit if any item is sold by number or unit:

Provided that for packages containing alcoholic beverages or spirituous liquor, the State Excise Laws and the rules made thereunder shall be applicable within the State in which it is manufactured.

Provided further that declaration of unit sale price is not required for the pre-packaged commodities in which retail sale price is equal to the unit sale price.

• 2. The Second Schedule which specifies the quantities of commodities by weigh, measure or number has been omitted.
• 3. No prosecution will be initiated against the manufacturer or packer or importer of pre-packaged commodities for making declaration with effect from April 01, 2022 in accordance with Legal Metrology (Packaged Commodities) Rules, 2021.
• 4. Further, the Ministry of Consumer Affairs, Food and Public Distribution, vide its notification dated September 30, 2022 had notified the Legal Metrology (Packaged Commodities) Amendment (Amendment) Rules, 2022. Wherein the said rules were amended and the date of implementation of Legal Metrology (Packed Commodities) Rules, 2021 was extended from October 1, 2022 to December 1, 2022.

CURRENT SCENARIO

The Ministry of Consumer Affairs, Food and Public Distribution, now, vide its notification dated November 30, 2022 has notified the Legal Metrology (Packaged Commodities) (Amendment) Rules, 2022.

The said rule further amends Rule 1, sub-rule (2), for the figures, letter and words- “1st day of December, 2022” and substitutes the same with “1st Day of January, 2023”.

The aforementioned thus implies that the amendments as prescribed in the Legal Metrology (Packaged Commodities) Rules, 2021 shall now be effective from January 01, 2023.

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