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May 24, 2024

 What is Right of Publicity & Passing Off:

Concept: The right of publicity protects an individual’s control over the commercial use of their likeness. This includes things like their name, image, voice, and other distinctive characteristics.

Protection: It prevents others from using these elements for their own commercial gain without permission. This could be using a celebrity’s image to sell a product, using their voice in an advertisement, or creating a character that is clearly based on their likeness.

Benefits: It allows celebrities and public figures to control how their image is used and to profit from endorsements or licensing deals.

Related Case Law (India):

  • M. Entertainment Pvt. Ltd. v. Baby Gift House & Ors.: As discussed earlier, this case involved the unauthorized sale of dolls resembling singer Daler Mehndi. The court likely ruled in favor of the singer, recognizing his right to control the commercial use of his likeness (Right of Publicity).
  • ICC Development (International) Ltd. v Arvee Enterprises: This case established that the right of publicity exists in India, although not as a distinct legal right. It can be enforced through other legal concepts like unfair trade practices or misappropriation of intellectual property.

Passing Off:

Concept: Passing off occurs when a business deceives consumers into believing their product or service is associated with another well-established brand. This can involve using a similar name, logo, packaging, or marketing strategy.

Protection: It protects consumers from being misled and ensures fair competition in the marketplace. Businesses cannot take advantage of another’s reputation to sell their own products.

Related Case Law (India):

  • McDonalds Corporation vs. Amrest International NV: This case involved a dispute over the use of the McDonald’s brand name and logo by a franchisee. The court ruled in favor of McDonald’s, highlighting the importance of preventing customer confusion through passing off.
  • Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.: This case involved two companies with similar names selling pharmaceutical products. The court ruled that the similarity could mislead consumers and constituted passing off.

Key Differences:

Focus: Right of Publicity protects the individual, while Passing Off protects the established brand.

Basis: Right of Publicity stems from a person’s control over their image, whereas Passing Off focuses on consumer protection and fair competition.

Overlap:

  • Sometimes, these concepts can overlap. For instance, using a celebrity’s name or image without permission could be both a right of publicity violation and passing off, if it misleads consumers about the product’s origin.

 Importance:

Both Right of Publicity and Passing Off play a crucial role in protecting individuals and businesses in the commercial world. They ensure fair competition and prevent consumers from being misled. These legal concepts are becoming increasingly important as the use of images and branding in marketing continues to grow.


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