D.M. Entertainment Pvt. Ltd. v. Baby Gift House & Ors.

Relevant Acts and provisions

Code of Civil Procedure, 1908

Section Order XXXIX Rule 1Section Order XXXIX Rule 2

Provisions considered: Common law action for passing off, false endorsement and infringement of the right of publicity, with relief under Order XXXIX of the Code of Civil Procedure, 1908.

Brief facts

D.M. Entertainment Pvt. Ltd., which manages the entertainment career and commercial rights of a well-known singer, sued several toy and gift shops for selling imported dolls that replicated the artist's likeness, attire and mannerisms and purportedly sang snippets of his compositions without any licence. The defendants did not contest the suit and were proceeded against ex parte. The plaintiff sought a permanent injunction, damages and rendition of accounts for the unauthorised commercial exploitation of the artist's persona.

Issues before the Court

1. Does unauthorised commercial use of a celebrity's likeness, voice and mannerisms on merchandise amount to an actionable wrong?
2. Is the right of publicity a distinct commercial right that a celebrity's management company can enforce as licensee?
3. What relief, including damages, is appropriate against defendants proceeded against ex parte?

Court's findings

The Court held that the right of publicity protects a person, and particularly a celebrity, against the unauthorised commercial exploitation of identity, including name, likeness, voice and other distinctive attributes, irrespective of whether the use is on goods bearing an exact image or goods that merely evoke the persona.

The Court found that the singer's distinctive appearance, attire and stage persona had, through his fame, acquired significant commercial value that the defendants misappropriated by selling dolls calculated to trade upon his image and reputation, and that such misappropriation amounted to a form of passing off and false endorsement, since consumers were likely to assume his endorsement of the products.

The Court held that the right of publicity, as a facet of the right to privacy, could validly be commercially exploited and enforced through an authorised licensee such as the plaintiff company, but found the evidence of the scale of the defendants' sales insufficient to justify a larger award of damages.

Decision

Permanent injunction granted restraining the defendants from selling the infringing dolls, with token damages and costs awarded.

Keywords

Character Merchandising False Endorsement Passing Off Personality Rights Publicity Rights