In India, the movie industry has a huge impact and every second person are always aware of which upcoming films are going to come. The Indian film industry has witnessed fantastic growth in past years for which in 2001 the Government of India had granted the status of industry to Bollywood which in turn has increased the investment in this sector. With such a demand in this sector and high involvement of money, it also becomes essential to protect it vide Intellectual Property Laws. So it becomes very important for the filmmakers to seek protection every aspect of their films from any infringement including the title. The title of the movie generally gives the audience the idea/perspective about the movie and thus interests the audiences to go for it.
But in India under Copyright Act, 1957 the word ‘works’ does not include the film titles but the Act gives protection to original literary, dramatic, musical, and artistic works, cinematographic films, and sound recordings. The reason behind not giving its protection is that the title of the work is not considered as literary work. So the filmmakers have resorted to trademark laws for protection of their title of the movie. A trademark according to the Trademark Act, 1999 is a mark that is capable of distinguishing the goods and services of one person from another. Thus the title of the movie gets safeguard under service mark.
Generally under the Act movie title are registered under Class 41 of the fourth schedule of Trademark Rules, 1991 as this class includes the service of “entertainment”. At the same time if the filmmaker/producer wants then it may also register the film title under Class 9 of the above-mentioned rule as this particular class provide registration for the apparatus for recording, transmission, or reproduction of sound or images. Here the film titles can be protected due to the reason of it also being recorded in DVDs.
It was also seen that often instead of registering under the Act the filmmakers opt for registering under Indian Motion Picture Producers’ Associations (IMPPA), Association of Motion Pictures and Television Program Producers (AMPTPP), and Film and Television Producers’ Guild of India, Film Writers’ Association and Western India Film Producers Association (WIFPA) where the producers generally enroll them as members and thereafter the association authenticates the titles and scripts.
But under Trademark Laws the Film Title can be protected in two scenarios which are-
1. Series of Film Title- here we all have to take examples of the movies Singham franchise, Golmaal franchise, or Dhoom franchise. Here these series of film title will be able to get trademark protection and registration easily as compared to the single film title as this highlight that it has come from the same production house.
2. Single film title- to acquire trademark protection primarily the secondary meaning of the title need to be obtained. Now question may crop up what is secondary meaning? Secondary meaning means the association of the title of the film with a certain source, production house etc which will in turn interest the audiences.
Before the release of any movie, it goes through the pre-release promotional stage where it gets quite well recognition. Now it is quite clear that it suffices the meaning of a well-known trademark so the film title under clause (1) of the Sec 9 of the Trademark Act, 1999 will be registered as the title is of distinctive character.
In several times the court has decided based on popularity achieved and not based on who has first used the title in case of a test of secondary meaning in film title. Registration of a film title as a trademark (service mark) or with any film association is not enough to protect the individual’s rights in a title. A party needs to show that it has commercially utilized the trademark and has gained enough recognition in the eyes of the public to obtain registration. But this approach discourages the small producers or filmmakers as there reach to the public is quite less to that of the big-budget producer so any infringement done by the big producers won’t be affecting them due to the existing precedence.
The Column Of Curae 