The title of any creative work such as books, songs, movies, creates an impression in the minds of the users. So, it is crucial to have a good name free of any encumbrances for creative works so that they can be promoted freely without any legal tangles.
Limitations in Copyright
Musical works and sound recordings are subject-matters of copyright and protected by copyright laws. However, book titles and song titles cannot be copyrighted, and naturally, one has to resort to protection under trademark statute. The trend of trademarking song titles are not so common in India when compared to foreign countries.
Why trademark a song title? It’s so happens sometimes several versions of songs are released, e.g., Vande Maatram. Trademarking it would certainly help to resolve such confusions. It is questionable whether this can be encouraged at all. Trademarking lyrics of a particular song is a bit of a complex issue.
Why this Kolaveri di? – Kolaveri Song
Sony Entertainment Media Pvt Ltd. filed two trademarks applications (No. 2246254 and No. 2246257) under Class 41 on December 8, 2011 before the Indian Trademark Registry. The status of the applications now stand “Objected” and the examination report issued indicates the grounds of objection to be,
“The trade marks-which are devoid of any distinctive character, that is to say, not capable of distinguishing the goods or services of one person from those of another person.“
While there are no conflicting or identical marks, our trademark office cites this ground in 98% of the applications; contrary to the examination procedure practiced by other trademark offices such as USPTO and UK.
We have personally experienced this situation in a number of applications filed by us before the Indian Trademark Registry, which objected stating the above ground, while the same has been accepted by USPTO and Austrlian Trademark Office. We will leave that for now.
Interestingly, Dhanush’s Wunderbar Films Private Limited, through its trademark attorney/agent filed two applications under the same Class 41 on December 16, 2011, approximately one week after Sony’s trademark applications. The applications filed by Wunderbar also carry the same status, “objected”, but the examination report issued by the trademark examiner cites relative grounds of refusal, in addition to distinctiveness.
At this time, we do not see any response to objection filed by either applicant, so it is unclear they intend to pursue or abandon them. If they intend to pursue, there is a strong likelihood for conflict, albeit it can be resolved amicably.
Conclusion – Do not sleep on your rights and be vigilant!
In the end, as far as intellectual property rights are concerned, it is in the best interest of an owner, inventor, or author to protect his rights by resorting to both legal and non-legal ways of protection, and not simply sleep on this rights. Trademarking or patenting or copyrigthing will not resolve everything, but one should also be equally vigilant as to what it is going on in the market.