A trademark can be “any term, phrase, symbol, design, or a combination of these things that distinguishes your goods or services,” according to the United States Patent and Trademark Office (“USPTO”). Can a physical gesture be registered as a trademark? The solution is not entirely obvious.
Wide spectrum for application
When popularity reaches a certain extent, certain physical features of a person take on a distinctive aura that makes them recognizable to the general public. The pattern of recognizability is clear, whether it is Miley Cyrus’ peculiar “tongue hanging out of her mouth” position, Jessica Roberts’ million-dollar smile, Shakira’s hips that don’t lie, etc. Consider Virat Kohli’s jawline, scraggly beard, or Mahi’s initial long hair. These physical characteristics of several Indian cricketers make it simple to link them with them.
These physical characteristics may extend to, and even incorporate, an individual’s “style.” Such a “style” typically involves an action or position performed by that specific body frame. The “Jumpman Logo,” an etching of Michael leaping for a slam dunk, may be seen on Air Jordan sneakers. Similarly, if a picture of Shahrukh Khan’s torso is placed on a “shirt,” it can represent his distinctive “DDLJ move,” with extended, stretched-out arms.
Commercialization of expression is only possible if the channels permit it.
Although trademarks can theoretically protect physical characteristics, it would depend on whether they are inherent traits of a particular celebrity or created using an outside filter or software. For instance, the software behind Snapchat’s Bitmojis and Instagram’s Disney Pixar filter changes the subject’s face or body into avatars that are satirical depictions of the user.
Such “filter-oriented” physical images cannot be profited from by being sold alongside goods that the celebrity endorses or creates. This is because the businesses mentioned above have prohibited their use for commercial endeavors.
Therefore, even if one argues that their own body has been photographed if that image has been altered by proprietary software that only permits personal use, it still cannot be trademarked.
Progressive recognition of IP rights
Modern trademark law has made it possible to protect non-conventional trademarks. A set of “open-ended” criteria has been established, the boundaries of which are subject to judicial interpretation. A “mark” is typically a sign imprinted onto the items with the primary goal of distinguishing for the Indian Trademark regime.
Additionally, just like conventional trademarks, even unconventional ones must fulfill three crucial requirements:
- They must distinguish the product and identify or link its owner to its origin.
- They must ensure the quality of the goods.
- They must be used in product advertising.
A graphic portrayal of the well-known and distinctive feature of the celebrity’s body, which may be a feature of their anatomy or a feature of their personality, satisfies the first of these requirements. As a result, the applicant’s products are better able to stand out from competing ones, satisfying other criteria for trademark protection specified by and under Article 15(1) of the TRIPS Agreement. The makers, packagers, and distributors of the product that the celebrity has promoted typically meet the latter two requirements.
The Shapely Goods’ Is it possible to trademark proportionality?
It is clear from the discussion above that little is revealed about how the product takes on the contour of the body that is being advertised through endorsed goods. Although forms are a part of the visual traits that aid in product differentiation, for a shape to be registered as a trademark, it must be distinctive and not serve as a functional component of the product.
When we attempt to imagine any product in the form of a specific celebrity, this problem is raised. Imagine, for example, a protein shaker shaped like Arnold Schwarzenegger’s arm or a replica of Messi’s foot being sold as memorabilia. Another example would be a perfume bottle proportionally formed like Kim Kardashian’s well-known hourglass figure.
Here, it might be argued that a person’s body measurements or other distinguishing characteristics can be found to be “naturally copied” by others, meaning that the product’s shape modeled after a specific celebrity’s body may not be protected by trademark law.
Considering the progressive expansion of the scope of intellectual property rights, these physical assets may be protected by trademarks if:
- their shapes or styles become distinctive and recognizable characteristics of some celebrities;
- their fans or followers can readily associate them with those celebrities; and
- they are merchandised through specific goods or services.
Anthony Davis’s “fear the brow” trademark controversy or Gareth Bale’s victory in trademarking his iconic heart celebration provide convincing precedence. The courts should look at the potential for trademark protection. Supporting the commercialization of distinctive physical characteristics of the public’s favorite celebrities has the potential to create new revenue streams and other economic opportunities.