From a Chota Bheem store stocked with towels, bags and footwear to Disney’s original Mickey Mouse merchandise, character merchandising is a fast-growing market. Part one of this two-part series covers what it is — and how to protect the character.
What is character merchandising?
Character merchandising is “the commercial exploitation of a famous character or personality.” Walt Disney conceptualised it in the 1940s, selling t-shirts, mugs and badges featuring Mickey, Minnie and Donald Duck. Ever since, creators have tapped the popularity and goodwill of fictional characters — and personalities — to sell products.
How can a fictional character be protected?
a) Trademark law
Because a character is represented in 3D or pictorial form on goods and services, it can be protected as a trademark. The key first step is to map the goods and services likely to be offered under the brand — now and in the near future — to pick the right classes.
Take a hypothetical cartoon, “Bumble Mumble.” For the word mark BUMBLE MUMBLE or a label bearing the character, you might file across classes such as:
- Class 3 — soaps, cosmetics
- Class 16 — stationery and paper goods
- Class 24 — bed covers
- Class 25 — clothing, headgear, footwear
- Class 28 — games and playthings
- Class 41 — entertainment services
With counterfeits everywhere, registration doesn’t just give the owner the right to use the mark — it lets them stop others infringing it. Yet a search of Indian cartoon/fictional characters with trademark applications or registrations turns up an abysmally small number.
b) Copyright law
Copyright exists the moment a work is created — no registration required. For “Bumble Mumble,” a cinematographic work, the copyright vests in the producer of the show — so every frame is the producer’s, with exclusive rights. Any poster, advertisement or pictorial representation is protectable as an artistic work. Use any image from the show without the producer’s consent and it’s copyright infringement.
Whether it’s a storybook character or an e-commerce brand ambassador, protecting it serves a two-fold purpose: exclusive right to use, and the power to stop others.
Coming up in Part Two
Part two covers licensing issues in character merchandising, and why sellers should steer clear of counterfeit merchandise.
Frequently asked questions
How is a fictional character protected in India? Through trademark law (registering the name/image across relevant goods-and-services classes) and copyright law (the cinematographic work and any artwork like posters).
Which trademark classes matter for character merchandising? Those matching the intended goods and services — commonly cosmetics (3), stationery (16), textiles (24), clothing (25), toys/games (28) and entertainment services (41).
Do I need to register copyright in a character? No — copyright arises automatically on creation; for a cartoon show, it vests in the producer, and registration is optional but useful evidence.
Why register a character as a trademark? It grants the exclusive right to use the mark on merchandise and lets you stop the widespread counterfeit products in the market.
Legislation referred to
- The Trade Marks Act, 1999
- The Copyright Act, 1957