The name or titles are undoubtedly one of the most important aspects of the movie which creates a distinct identity for it among its audience. The movie makers give a lot of thought and importance in choosing unique distinct title or name for their film so that the movie could prove to be popular and blockbuster hits among all classes of audience. While choosing the title or film, it must be chosen with utmost care, caution, and deliberate choice of intension which should be connected with mind, taste, and interest of audience. It is interesting to know that for protection related to movie titles, movie titles cannot be copyrighted. In that case, the protection under trademark law is the resort to which the film makers look to.
Importance of Title
Title play an important role in recognition on any cinematographic work, it is pertinent that ownership and validity of titles and prevent others from unauthorized use or adoption or infringement of same. The Indian film industry also popularly called the Bollywood has witnessed stupendous growth in past years. In 2001, the government of India granted the status of “Industry” to Bollywood which has only helped it attract certain high prolific global investors into invest in Film Industry including 20th Century Fox, Viacom Motion pictures etc. with plethora of movies every year a lot of controversies keep on surfacing related to movie titles. In such situation protection of different aspect of a movie through intellectual property law.
Indian trademark law
It is to be noted that 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 Dhoom franchise viz. Dhoom, Dhoom 2, Dhoom 3.
2) Single Film Title –A single film title has to pass certain qualifications in order to acquire trademark protection and registration.
• To acquire trademark protection for a single film title, a secondary meaning of the title must have been obtained. Secondary meaning means, “The association of the title of the film with certain source, production house etc. by the movie goe or audience.” Before a movie is released in theatres, it goes through the pre-release publicity and other promotional activities which 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 has acquired distinctive character as a result of the use made of it.
• The court may consider certain factors while deciding the secondary meaning of the title of the movie which are as follows: Continued Use and its Duration; Expenditure on advertisement & promotion; Number of viewers; Revenue collection of the movie; Plaintiff and Defendant’s closeness of the geographical and product markets.
Under the Indian Trademarks Act, 1999 (Trademarks Act), film titles qualify as ‘service marks’ instead of trademarks. It is always advisable to register a movie title as a service mark for acquiring exclusive rights and protection over the title. The registration of a trademark constitutes prima facie validity of the same in legal proceedings.
Under the Indian Trademark Act, 1999, the title of a film can be registered and protected under Class 41 of the Fourth Schedule of Trademark Rules, 2001. In India, major production houses apply for registration of movie titles and labels in Class 41 that embrace a number of services including “entertainment”. On the other hand, , these applications are also filed in Class 9 as movies can also viewed on storage devices like DVDs that provides for, among other goods, “apparatus for recording, transmission or reproduction of sound or images…”
