Now Trademarks Become a Money Maker

Nowadays, Trademarks have become money makers in the music and film business. 
The two main sectors, music and film are the emerging big markets globally which gives huge profits to the entertainment industry. Protection of commercial rights and interest for a song and film title plays a vital role when an legal issue arise. The paradigm shift surrounding the intellectual property issues plays a significant role surrounding various controversies related to trademark issues such as deceptively similar song / film title, unauthorized use of film titles falling within the ambit of infringement of trademarks and remedy of passing off. 

A trademark or service mark, is a sign that distinguishes the goods and services produced and provided by one company from those of another. In the world of music, a band’s name is its brand, and as such, can be protected as a service mark. Examples of bands with trademarks include The Grateful Dead, Aerosmith and REM. Bands can also register trademarks in relation to their albums, t-shirts or any other merchandize they produce. With a trademark a band acquires the exclusive right to use its name, entertainment services and gains greater control over its identity. Acquiring a trademark can help secure additional sources of revenue, through licensing and merchandizing deals. Titles of songs are not normally eligible for trademark protection but may be so in relation to associated merchandize or if part of a series of works.

The name or title creates a sense of identity for a film among audience. All over the world, the makers of a film takes utmost care and importance in choosing an unique exclusively associated distinct title or name for their film to get popular & blockbuster hit among the all classes of audience. This association brings the audience to watch the film in theatres with their families as well as associate it with producers. Under Indian Trademark Act, 1999 the title of a film can be registered and protected in Class 41 of the fourth schedule of Trademark Rule, 2001.

The title of a cinematographic film is protected in Trademark Law under two conditions:-

1) Series of Film Title– This series of film title can get easy trademark protection and registration when compared to the single film title. Examples of Series of Film Title include Singham franchise i.e., Singham, Singham II and Singham III.

2) Single Film Title–This condition of single film title has to pass the second qualification in order to acquire trademark protection and registration.

Secondary meaning of the Single Film Title –Single literary work’s title: 

  • To satisfy or fulfil this condition of trademark protection, a secondary meaning of the title must have been acquired. Secondary meaning means, “The association of the title of the film with certain source, production house etc. by the movie goer or audience.” Even before the movie gets officially released in theatres, the pre-release publicity, promotions of the title of the film is sufficient for trademark protection under the proviso clause stated under clause (1) of Section 9 of the Trademark Act, 1999 which specifically gives Trademark registration to a well-known mark or a mark which acquired distinctive character as a result of the use made of it. 
     
  • The court may take into considerations certain factors which decide the secondary meaning of the title of the film as listed below:
    • Continued Use and its Duration; 
    • The amount of money spent on extent of advertisement & promotion
    • The number of people who bought or viewed the owner’s work its Sales figures on purchase of tickets
    • Plaintiff and Defendant’s closeness of the geographical and product markets.

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Author: Neetu Singh- Media Marketing Manager at Einfolge