Thursday, May 12, 2011

Character Merchandising

Character merchandising can be defined as the adaptation or secondary exploitation by the creator of a fictional character by a real person or by one or several authorized third parties of the essential personality features (such as the name, Image or appearance) of a character in relation to various goods and/or services with a view to creating in prospective customers a desire to acquire those goods and/or to use those services because of the customers’ affinity with that character. Characters can be fictional or real.

Few examples of Character Merchandising are:
- A toy is the three-dimensional reproduction of the fictional character Mickey Mouse
- Tennis shoes with the name ‘AndrĂ© Agassi’
- An advertising movie campaign for the drink Coca Cola shows actor Amir Khan drinking Coca Cola

The concept started in US during the 1930s, when Walt Disney became famous through its creations - Mickey Mouse, Donald Duck, etc. In India, we it is though Hanuman, Krishna, etc.
In fact, the concept has its philosophical beginnings from Hegel through the exposition of ‘individual property is the extension of his personality’. One shall not a trespass the personality of a person who has attained a fame and reputation. For this purpose, the person/ celebrity has to justify his fame as a form of merchandise to get protection.

Legal framework
There exists no specific law for character merchandising, while trademark, designs and copyright provide protection to persons who want to safeguard their personality. For eg: Football star David Beckham has protected his face and prevents people from using it in posters and cutouts.
It is the owner who is the creator or holder of the character. For instance, cartoon characters are properties of the persons who drew and created them. Legally, characters are protected through various steps as a form of Intellectual property rights. Pinochio and Tarzan are considered to be literary works, while Tintin and 7 UP character are strip cartoons, protected under IPR laws. Drawings and artistic works like Mona Lisa, and cinematorgraphic representations like King Kong, and Krishh are similarly protected.

Character merchandising is often invoked legally to prevent unfair competition, since there is a high chance that competitors may use noted celebrities while advertising.
In India, the Designs Act is used to cover names and titles of work and cinematographic works and registered for preventing infringement. The Prevention of Improper Use Act, 1950, which provides for list of names, emblems and the like are protected and any misuse invited prosecution. Famous cases in India regarding Character Merchandising are DM Entertainment v. BABY Gift house, wherein the dolls of the noted playback singer Daler Mehndi was sold in the market without the consent of the company which had bought complete rights from the singer. The Court found it to be a passing off, as it causes impression on people as to deceive people that it was a product of the company which had rights over the singer. Other instances of character merchandise include Saurav Ganguly seeking Tata Tea to refrain from using his face for marketing its product.

There is a need to protect the rights and interests of the creators who had taken strains to create a work using their intelligence. While intellectual property rights provide protection to such creators as an incentive to their creation, they are often weak in protecting the misuse of characters created by individuals. Often celebrities are at the receiving end when it comes to such misuse. It is pertinent to accord protection and prevents misuse of their name or face for purely commercial endeavours or misrepresentation. India needs to strengthen its IPR regime to provide protection to creators and encourage innovation. Character Merchandising laws shall be able to strengthen the IPR regime and build up reputation of India as a nation strong in encouraging and protecting inventors.