By Ashlesha Suryawanshi (Student at MNLU Mumbai)
In this case, ICC Development International Ltd, a member of the International Cricket Council was the plaintiff. Being a member of the international cricket council, the plaintiff owns and controls its retail rights including Sponsorship rights, media rights, trademark rights etc. Plaintiff was the organiser for the ICC World cup which was held in 2003 in South Africa, Zimbabwe and Kenya. For this event, the plaintiff creates a distinct logo as well as a mascot. Plaintiff register a created logo which includes words, “ICC Cricket World Cup 2003 South Africa” and mascot, Dazzler for trademark, in various countries including India. According to the plaintiff, they obtained a ‘persona’ and ‘ Identity’ of their own. Defendant, Arvee Enterprises, an authorised dealar of Philips India Ltd which is manufacturing electronic goods. Defendants Arvee Enterprises offer cricket world cup tickets as a prize by saying ” Philips: Diwali Manao World Cup Jao” and also On the ticket, they put a picture of an imaginary seat and gate as well as a number in it, headed as “Cricket world cup 2003”. Plaintiff filed a suit of Injection under section 151 of Code of Civil Procedure alleging that Defendants intentionally used plaintiff logo and mascot for advertising its product.
Arguments of Parties
1) Plaintiff argued that the defendant’s misrepresenting their association and the world cup with mala fide intention to gain commercial benefit.
2) The Plaintiff, they also pleaded guilty to causing serious damage to the reputation of the plaintiff by the defendant.
3) The ticket conditions do not fulfil by the defendants because the tickets which were sold by the defendants are not authorised or approved by the plaintiff.
4) Plaintiff also claims them for ambush marketing because they take undue advantage of the world cup event.
5) For using the mark and identity of the plaintiff defendants are liable for passing off, because they were not official sponsors. They also prevent plaintiffs and other sponsors from contractual obligations.
1) Defendants argue that the world cup is a generic term that is used in various events also it is not protected by any treaty or law, so its use is not unauthorized and not punishable.
2) Defendants simply use the term world cup and not use any logo and mascot for promotion, doesn’t create any complication in minds of people, also they did not win the belief of people about sponsorship of the event.
3) Defendants have not to motive to make any kind of business association or relationship with the plaintiff.
4) According to Defendants, they did not use any trade name or property name of the plaintiff also the term world cup, generally used in various sports events so it is a generic term.
6) They state that they used their trademark for fair use which is also permissible under section 34 of the Trademark and merchandise act 1958.
7) The defendants approved tickets which they booked for 125 people from sub-agent of Plaintiff who is a sole International tour operator.
While giving judgement Court observe some Findings as below :
Passing off means misrepresentation done by taking other goods or services, this action makes a loss to the actual owner of that property, damages his goodwill, cause economic and reputational loss. In this case, the defendant does not use any goods or services of the plaintiff but only uses slogans which eventually show that who purchase his goods might win the ticket for the world cup. They did not convenience the people that they are sponsors of the event. Any type of goodwill or reputational loss does not happen to the plaintiff. Here it is not an unfair competition or wrongful appropriation so defendants are not liable for passing off, Because the basic principle of passing off does not met.
Ambush Marketing, It is a market strategy in which using our product under publicity value of Major event without contributing financially and gains the right of sponsorship, it is opportunistic commercial exploitation, of any event and it is different from passing off. Their main aim is to mislead the community about the original event sponsors. In ambush marketing, they infringe copyright, a trademark of the events owner’s. Used actual name or logo for advertising. But here there is no deception, Defendants does not use any logo or name but exercise their right of free speech which mentioned under article 19(1) (a) of the Indian Constitution. The simple use of the term world cup does not indicate the trade name of the plaintiff event, so the defendant’s action is covered under commercial advertising.
Tickets sold by defendants were from the Indian sub-agent of the official tour operator of ICC development, therefore it is fair and confirmed by an authorised agent so Court rejected the plaintiff point of Breach of Ticket Conditions.
Right of Publicity: The plaintiff argued that defendants breach their right of publicity by using their trademark but Court held that the Right of publicity can be inherent only in an individual because it evolves from the Right of Privacy. This Right is acquired by an individual human being and not by non-living entities. So because the Right to Publicity belongs to Individual living being only that person is allowed to gain profit from it. By taking this right from human entities is a clear cut violation of article 19 that is freedom of speech and & 21, right to life of the Indian Constitution so this right associate with individuals and does not apply on non human beings like any event or organization. Therefore Defendants does not violate the Right to Publicity and does not gain any financial benefits under the plaintiff property.
For the above reasons, the plaintiff application dismisses and The court rejects the plea of interim injunction.
The Case of ICC Development International v. Arvee Enterprises addresses the issue of Publicity Rights. In today’s competitive world a lot of aggressive Commercial practices, business practices going on, many people are busy promoting their business strategies, various Celebrities also participate in the promotion of various brands, Companies. In this scenario, Publicity Rights prevents them from the unauthorised appropriation of Images and their personal information for commercial use.
The Right of Publicity developed from the Right of Privacy which refers to a human being and not for any none living entities.. It covers Individual personality his name, signature, trait, voice etc. Personality rights related to persons private information. Most celebrities used this right if any person used their name or photograph to advertise their trade or misused their personal information. Therefore, they need to register for the trademark of their name. In India, personality rights save under article 21 of the Constitution, and there is no other law that protects personality rights.
Though we have protection under personality Rights only the illegal and unlawful usage of personal information with mala fide intention is punishable under law. If any person using the name and any other personal information without the consent of the original person then it is punishable.