Should A Documentary Be Registered As Content Title?

Trademark Law — Paradigm Source: https://bit.ly/35TIFQd

This article is written past Mayura Shetty, pursuing a Certificate Form in Media and Entertainment Law: Contracts, Licensing and Regulations from LawSikho.com. Hither she discusses "Registration of Film Titles Under Trademark Law".

Introduction

India is a nation obsessed with movies and, in fact, it is the largest producer of movies in the unabridged world. As a effect, it is no wonder that film makers seek to protect every aspect of their films from infringement including the title. The title of a picture show is selected with groovy care to capture the essence of the flick and to arouse interest among moviegoers. The title is what primarily distinguishes one picture show from another and creates an identity for the movie. Hence, it is imperative for a motion-picture show maker to protect his pic championship and ensure that no other person uses a title like to his.

It is for this reason that producers or script writers seek to protect the title of their film under the intellectual property laws of the land. In India, copyright law does not afford protection to film titles as they are not considered "works" within the meaning of the Copyright Act, 1957. Copyright protection is given to original literary, dramatic, musical and artistic works, cinematographic films and sound recordings 1 . This ways that the work as a whole is protected under copyright law but such protection is not given only to the title of a work. This is rational as a championship cannot be considered as a literary work by whatsoever stretch of imagination. As a event, film makers have to resort to protection under trademark law. A trademark has been defined in the Trademark Act, 1999 (hereinafter referred to as "the Act") as "a mark which is capable of distinguishing the goods and services of one person from those of others 2 ". A film title can be registered as a service marker nether the provisions of the Human action after it has met sure pre-weather condition that have been further elaborated hereinbelow.

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Process of Registration of a Film Championship as a Trademark

Under the Act, a picture show title can be registered equally a service marking under Class 41 of the Fourth Schedule of the Trademark Rules, 1991. This class includes a number of services one of which is "entertainment". Hence, film makers usually apply for registration of the motion-picture show titles under this category. They tin can besides use for registration under Class 9. This course provides for "apparatus for recording, transmission or reproduction of sound or images" and film titles can be protected under this form equally movies can be viewed on devices such as DVDs.

Registering Movie Titles with Film Industry Associations

Autonomously from registering the title every bit a trademark nether the Human activity, picture show makers as well choose to register their movie titles with certain industry associations. Indian Movement Picture Producers' Associations (IMPPA) , Association of Motion Pictures and Television Programme Producers (AMPTPP) and Film and Telly Producers' Guild of India, Film Writers' Association and Western India Film Producers Association (WIFPA) are examples of associations wherein producers and writers tin enrol equally members and thereafter register their moving-picture show titles and scripts with such associations. The association authenticates the title before registering it to ensure that it is not like to any formerly registered title. Withal, registering a title with such associations doesn't amount to buying of the title. These associations are not recognized by constabulary. Hence in order to obtain buying of a title, information technology is recommended to register it every bit a trademark.

Under trademark law, the title of a film is protected in ii scenarios:

Series of titles : When at that place are a serial of movie titles such as the Singham franchise, the Dhoom franshise or the Golmaal franchise, trademark protection can be obtained much more easily. A series of titles indicates that each moving picture comes from the same production house and therefore can be registered equally a trademark without any difficulty. Such titles accept already gained popularity among the public and proving buying of such trademark is not difficult.
Single film title : There are certain atmospheric condition that a unmarried film title has to meet in order to learn protection as a trademark. The almost of import requirement is that the title must obtain a secondary meaning in the minds of the public. This means that the movie watching audience must acquaintance the flick championship with a item source or production house. Such secondary significant is achieved by the promotional activities that are undertaken prior to the release of the film as the public gets exposed to the flick during the promotional events itself. In one case such secondary meaning has been achieved, the championship acquires the status of a well-known mark and hence can be registered every bit a trademark as per the provisions of the Act3. Whether a championship has acquired a secondary meaning is unremarkably inferred from the length of time for which it has been used, the promotional activities surrounding the movie and the amount of money spent on such promotions.

This examination of secondary significant was laid downwards by the Delhi High Court in Kanungo Media Ltd. Vs RGV Moving-picture show Manufactory and Ors iv . In this case, the plaintiff has produced a documentary in Bengali titled "Nisshabd". This moving-picture show was not released commercially as the plaintiffs did non have acceptable resources simply had won awards at certain film festivals. The plaintiffs sought to foreclose the defendant from using a similar title for a Hindi picture past claiming that they held a copyright over the title. The Delhi High Court held that film titles can exist protected under trademark law but not nether copyright law. This is the position under US laws as well. The court too stated for trademark protection, the title should have caused a secondary meaning. Information technology was held by the court that the plaintiff'south pic had not caused a secondary pregnant in the eyes of the public. Hence the defendant could not be prevented from using the title as they had already spent a huge amount of money to promote the movie and the public was acquainted with the film.

In Biswaroop Roy Choudhary vs. Karan Johar 5 , the plaintiffs had registered the title "Kabhi Alvida Naa Kehna" under Class 41 of the Act. The defendants had registered the title with Association of Motility Pictures and Tv Program Producers (AMPTPP), a film association. The court held that the defendant was the bodily user of the marking, he had produced a film using such title and had spent a huge sum of money for advertising and promoting the film. This conclusion has been widely criticised equally the plaintiffs had registered the title equally a trademark and still lost the case only because Karan Johar'south movie was widely publicised.

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This leads us to the decision that the court always places precedence on the popularity achieved by a movie and not on first use of the title. The court also takes into business relationship commercial usage of the championship. A political party that has not used the marking commercially is more than likely to lose out on protection to a political party that has actually fabricated such commercial utilize. Registration of a title every bit a trademark or with whatever film clan equally mentioned above is not adequate to protect one's rights in a title. A party has to show that he has actually used the trademark in a commercial style and that the public recognises it.

The examination of secondary meaning tin can sometimes tend to be unfair as a party who does not take the financial resources to promote his picture may lose out on trademark protection to a party who has the means to promote his movie and create a secondary pregnant of the same. While it is understandable that the court would want to protect a trademark that the public hands identifies with, some consideration must too exist given to pocket-sized movies and small producers who only do non have the resources to undertake large scale promotions of their movies. Otherwise, it results in only large and rich product houses enjoying trademark protection for their movie titles. A balance has to be achieved as there are certain movies made but for digital platforms that may not reach the fame of a large-budget moving picture that has a theatrical release.

Conclusion

Every bit has been stated in the beginning, the title of a movie holds a lot of significance. Hence it is imperative that ii like sounding titles are non used by film makers as this may crusade some confusion amid the public and in some cases may besides lead to losses for a particular pic maker. The available decisions of courts that bargain with trademark protection of flick titles take tended to favour the moving picture that is more well-known among the movie watching public. This is because secondary significant is a basic tenet of trademark law. While this may tend to undermine movies made by pocket-size producers, it too tin can assist in situations where a person may register a title as a trademark merely to foreclose others from using it. In such a example, protection volition be awarded to the person who shows he has used the mark extensively and that this has been recognised past the public besides.

Endnotes

The Copyright Act 1957, s. 13
The Trademark Act, s. 2 (zb)
The Trademark Deed, s. 9(i)
2007 (34) PTC 591 (Del)
2006 (33) PTC 381 (Del)

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