Recently, I came across an exclusive store for Chota Bheem merchandise in Chennai that had every product (towels, bags, footwear and more) one could possibly imagine and I’m sure every child who walked into that store hasn’t left without throwing a tantrum to own one of those products! That really got me thinking of how character merchandising has been a fast growing market in India in the last few years. We’ve all been fans of cartoons and fictional characters at some point in our life and today, we have the opportunity of buying merchandise of our favorite characters. I’m sure most of us will admit to such indulgence even though it’s a little heavy on the pocket and that weakness is what the manufacturers of such merchandise are probably tapping into!
I hope to bring clarity on the various issues relating to character merchandising through this two-part post dealing with the types of protection that can be sought, issues pertaining to licensing and why one should steer clear of selling counterfeit merchandise.
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What is character merchandising?
Character merchandising is the commercial exploitation of a famous character or personality. It was Walt Disney that conceptualized the idea of character merchandise and began selling t-shirts, mugs, badges and other products with Mickey Mouse, Minnie Mouse and Donald Duck in the 1940s. Ever since, creators of such fictional characters and even personalities have tapped into the popularity and goodwill of the character and made the most of it.
How can such fictional characters be protected?
a) Trademark law
Since the fictional character is being represented in a three dimensional or pictorial form on goods and services, such character can be protected under the trademark law. The next step is to be able to determine the types of goods and services that are likely to be provided under the brand, both now and in the near future to ascertain the classes under which registration can be sought.
So for instance, let’s assume that Bumble Mumble is a popular cartoon character being aired on a television channel and merchandise is being launched under the said brand because of the popularity that the show has garnered. The classes that under which one may seek registration for the word mark ‘BUMBLE MUMBLE’ or a label containing the image of Bumble may include:
Class 3 – Soaps, cosmetics etc.
Class 16 – Stationery and paper related goods
Class 24 – Bed covers
Class 25 – Clothing, headgear and footwear
Class 28 – Games and playthings
Class 41 – Entertainment services
Given that counterfeit products are available in the mark by the dozen, such registration not only gives the owner the right to use the trademark but also prevents others from infringing it. However, on conducting a search on the Indian cartoons or fictional characters that have trademark applications or registrations, I found that the number is abysmal.
b) Copyright law
A copyright comes into existence the moment the work is created, so one does not necessarily need to register a copyright. Taking the same example, Bumble Mumble being a cinematographic work, the copyright will vest with the producer of the show. By this, every single frame is the copyright of the producer and therefore the exclusive rights vest with that person. Further, any poster, advertisement or pictorial representation can be protected as an artistic work under the copyright law in India. So if any person, uses any image from the show itself without the consent of the producer, it will amount to copyright infringement.
No matter how big or small the creation, it could be a character in a story book or the brand ambassador of an e-commerce website, it is essential to protect it. As mentioned before, the purpose is two-fold – it gives you the exclusive right to use the mark and also prevents others from using the mark.