Daler Mehndi a famous Pop star from Punjab has created a niche audience and is immensely famous amongst Punjabi- Pop music lovers. And Appellant company was registered in 1996 to manage artist’s escalating career.
In this case Defendants were engaged in selling of miniature toys of Daler Mehndi which was causing heavy loss to the Plaintiffs. Therefore plaintiff company filed suit for permanent injunction for infringing artist right of Publicity and false endorsement leading to Passing Off.
The Plaintiff company had been assigned all the rights, titles, and interest in the personality of the artist along with the Trademark. And it was contended by the Plaintiff’s company that Defendants were illegally using the unassigned and unlicensed product and sold it to the consumers which creates confusion in the mind of consumers that the mark is somehow related to the Plaintiff and which commercially exploits the plaintiff’s economy and reputation. And hence, it was submitted that such a use leads to Passing off. It was further submitted that such use was committed without the permission from the Person or any other person authorized by him. And it clearly shows the intention of the Defendant to commercially exploit the Plaintiff.
Section 29 of the Trademarks Act, 1999 ( hereinafter the Act) lays down the aspect of infringement of trademark. It elucidates that when a person is using , in course of any Trademark, which identical or deceptively similar to a registered mark which he is not entitled or licensed to use shall be deemed to infringe on the rights of a lawful person who has the lawful right over the mark.
The Act does not give a specific description of Passing off as a result it has been derived through Judicial precedents, common law. Passing boff plea could be taken when mark is created which is deceptively similar mark and is created to create confusion in the mind of the consumers that results in the loss damage or loss of the business for the person or company who/which is the lawful owner of the trademark.
Character merchandising is an area of law which is unexplored in India. The first case that dealt in this was Star India Private Limited Vs. Leo Burnett India Pvt Ltd.. the courts in India in these earlier cases had not dealt with publicity rights. I this Compensatory cost of rs.1 Lakh was given to the plaintiff and in this the intent of the judiciary was clear.