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15 May 2026 by
The concept of intermediary liability under the Information Technology Act, 2000 (“IT Act”) first germinated at a time when intermediaries, broadly defined to include persons who, on behalf of another person, receive, store or transmit electronic records or provide services in relation to such records , were largely perceived as passive facilitators enabling access to information. Consequently, India’s intermediary liability framework was originally built on the understanding that digital platforms should be shielded from automatic liability arising out of third-party content.
05 May 2026 by
“The importance of preventing well known characters from being misused for commercial products lies in the fact that the creation of fictional characters requires a great amount of creativity and an innovative mind.” – Delhi High Court in Disney Enterprises, INC & Anr. v. Pankaj Aggarwal & Ors. Introduction Across the world, entertainment has been a source of escape for almost everyone. Whether it’s a book, comic, movie, serials, video games or maybe now reels. This escape or desire for being entertained has spawned over the years, a massive proliferation of multiple fictional characters which have been etched into people’s memory. While there is content available such as documentaries and biographies, it’s this make-believe characters and their world which has led to development of humungous pop-culture across countries where these fictional characters are enjoyed and celebrated as one of our own. Whether its Godzilla, King Kong, ET, James Bond, Sherlock Holmes, Mr. Bean, Uncle Scrooge, even Batmobile or our very own Nagraj, Chacha Chaudhry, Chhota Bheem, Crime Master Gogo; they all have a huge fan following across generations. However, the question which begs consideration is: What has been the jurisprudence towards protection of such characters? The need for protection The popular fictional characters have value as people tend not only to have them as part of the content in which they appeared, but closer to them in their daily lives as fans. These characters can be seen in some manner or another around us on vendible items such as dolls, magnets, mugs, cups, school bags, T-Shirts, caps, watches, wrist bands, masks, book holders, book marks, bottles, theme parks, theme cruises, note pads, ceramic holders, journals, baggage tags, crocs, keychains etc. and aid in increasing the saleability of the products to which they have been applied to. Since, they aid in increasing sales of a product which may or may not sell if it does not have characters image, name, indicia etc., they impart value to goods and thus there is a need for protection for them. Even apart from above, even if an entity has not licensed its characters for use for merchandising, these characters still need protection as their value lies in selling their subsequent issues which for successful characters are in high anticipation. For example, in comic books, series or in movies that have direct sequels; the anticipation increases if the characters are being repeated. On the other hand, if the sequels are mere spiritual sequels the anticipation of the audience goes down impacting the film’s revenues. However, the above reasons are not the only reasons. The above reason are highly commercial reasons on the need for protection of fictional characters. Apart from the above, the need for protection goes back to the first principle of Copyright protection, i.e. to act as an incentive and encouragement to authors to continue their endeavours towards creativity. If an author/creator is not protected (which leads to other rewards such as monetary gains and recognition) for its writing original characters, it might loose the inclination to think something out of the box, the work produced then may be a something underdeveloped, having a low retention value and thus limited ability to give returns. On a larger level, such a situation may not be conducive even for the economy of the nation which could reap benefits due to popularity or monetization of character. No wonder, the Indian Government is taking steps towards strengthening its Orange economy. The Government of India in February, 2026 proposed to support the IICT Mumbai in setting up AVGC content creator labs in 15,000 secondary schools all over the country and 500 colleges. The Tests for Protection Over the years, the Courts have formulated few tests so as to determine protectability of fictional characters. In, Anderson v Stallone , it was observed that in Nichols v. Universal Pictures the test set out to grant copyright protection to a character is ‘if it is developed with enough specificity so as to constitute protectable expression.’ The Court also observed that in Warner Bros. Pictures, Inc. v. Columbia Broadcasting System, Inc. , no copyright protection was given to the literary character Sam Spade since it did not constitute the story being told (also known as ‘story being told test’). Having observed both the tests and also observing that the ‘story being told test’ is more restrictive, while discussing their applicability; the Court applied both the tests to the case of Rocky Balboa as a matter of abundant caution and found the character protectable under both tests. The Court found Rocky Balboa to be a highly delineated character as his name is the title of all of the Rocky movies and his character has become identified with specific character traits ranging from his speaking mannerisms to his physical characteristics. Further, the Court found that the Rocky characters were so highly developed and central to the three movies that they ‘constituted the story being told’. It was ultimately held that the Rocky characters Rocky, Adrian, Apollo Creed, Clubber Lang, and Paulie 'constituted the story being told’. Over the years, multiple fictional characters have been protected by Courts such as Disney characters such as Mickey Mouse , E.T. The Extra-Terrestrial , James Bond , Godzilla , Batman and even Batmobile . In the James Bond case, irrespective of the fact as to how each actor portraying James Boon looks like, it was accorded protection since James Bond always maintains his “cold-bloodedness; his overt sexuality; his love of martinis ‘shaken, not stirred;’ his marksmanship; his ‘license to kill’ and use of guns; his physical strength; [and] his sophistication. In the case, where rights were being claimed on Batmobile, the United States Court of Appeal for the Ninth Circuit, went through multiple decisions on the issue of copyrightability of characters and culled out three tests for their protection: i. The character must generally have “physical as well as conceptual qualities”; ii. The character must be “sufficiently delineated” to be recognizable as the same character whenever it appears. Considering the character as it has appeared in different productions, it must display consistent, identifiable character traits and attributes, although the character need not have a consistent appearance; and iii. Third, the character must be “especially distinctive” and “contain some unique elements of expression. Even when a character lacks sentient attributes and does not speak (like a car), it can be a protectable character if it meets this standard. The Court found Batmobile to fall under all the three tests and granted it protection. Conclusions & Suggestions While the Courts have laid down certain tests, the applicability of those tests to each fact based situation has to be different. For example, there have been characters that have been immensely popular but may not satisfy the ‘story being told’ test. Are they not entitled to protection, while their character attributes, manners, traits may be distinctive and merchandisable. Secondly, is it necessary to have a character merchandising plan in advance before claiming that if used on a merchandise, it amounts to passing off. Indian jurisprudence in this regard, has grey areas. In the author’s view so long as there is value on account of addition of a character it needs to be protected. As a suggestion, it is advisable to protect these characters through various means, copyright and trade mark registrations which may even include 3-d registrations which will really help in protecting the character from unauthorised use in figurines, bobble heads etc. Apart from the same it is absolutely essential to have a surveillance in the market and one should keep issuing at regular intervals Trade mark and Copyright caution notices claiming rights over their characters. While, this article does not deal with the issue of authorship and ownership in AI-generated works, which is a subject matter of separate debate and this paper focuses only on protectability once created, it is stated that the AI platforms have enabled people across the globe to create parallel stories of popular character and disseminating the same on video sharing platforms. The same is not advised, because all of these are derivative works based on the characters. Even for fandom, which is considered as another defence to copyright violations for fictional characters; this is not a line one should tread as it impacts the Copyright owner. On the merchandising side, the licensors are advised to have licenses products that bear a permanently affixed copyright notice and/or trademark notice. It appears that in India, we are still at a very nascent stage in investing in merchandising of fictional characters. There have only been a handful of examples. In fact, in 2013, we apparently had India’s first Hindi film based character dolls for the film Dhoom 3. So, on this front, I think India has miles to go as compared to its foreign counterparts which have developed markets. About the author: Ankit Rastogi, Partner Mr. Ankit Rastogi was admitted to the Bar in the year 2011. In 2021, Ankit completed his LL.M. in Intellectual Property Law from USLLS, Delhi (IP University) and received a Gold Medal from the University for standing first in the order of merit. Ankit’s core domain lies in Intellectual Property protection, enforcement and strategy. Over the years, Ankit has worked on certain important decision on Intellectual Property Rights in India, covering the issues pertaining to ‘single colour marks’, ‘reverse confusion’, ‘comparative advertising’ and ‘priority rights in trade marks’. Ankit is majorly involved in trademark, copyright & design litigations as well as transactional work in Indian Comic book space.
13 March 2026 by
Geographical Indications (GIs) represent a unique category of intellectual property that protects the collective goodwill of communities whose products derive distinct qualities, reputation, or characteristics from a specific geographical origin. In India, the statutory framework for such protection is embodied in the Geographical Indications of Goods (Registration and Protection) Act, 1999 (the “GI Act”), enacted pursuant to India’s obligations under the TRIPS Agreement.
12 April 2023 by
Character Merchandising is a new age business phenomenon to commercially exploit the famous comic characters in garb of generating revenue and fetch profit by using the pictures, voice dialogues of famous characters / personalities of which the general public are emotionally connected. The evolution of the character merchandising was by the famous company – Walt Disney Studios in 1930’s when they licensed the famous character like Mickey Minnie and Donald duck. Technological advancement and channels devoted to children entertainment has created a demand in the market and influenced the said segment to buy the product as the general public get attached to the character.
04 September 2019 by
In the matter of copyright infringement for a film, there has been a mix of decisions by the Indian courts, each presenting a divergent opinion on the point - whether the infringing copy in case of cinematographic film has to be an exact copy made by the process of duplication or whether it refers to another work which substantially, fundamentally, essentially and materially resembles the original film.
