INTRODUCTION
“Even though freedom of speech and expression allows for critique and commentary, it does not grant the license to exploit a celebrity’s persona for commercial gain.” – Justice Riyaz Chagla
A. Commercial Value and the Commodification of Celebrity Persona
The growing integration of celebrity culture with commercial markets has fundamentally altered the legal significance of personal identity. Public figures today are frequently perceived not only as individuals but as commercially valuable entities whose names, likenesses and distinctive attributes generate measurable economic returns. Endorsement contracts, advertising campaigns, branded merchandise and digital collaborations increasingly rely upon the market appeal attached to celebrity reputation. In such contexts, identity operates as a strategic commercial resource rather than a purely personal attribute.
The economic value attached to celebrity persona is derived from public recognition and accumulated goodwill. Consumers often associate particular qualities, credibility or lifestyle representations with a well-known personality. Businesses seek to capitalise on these associations by using celebrity identity to influence purchasing behaviour. However, when such identity attributes are used without authorisation, the resulting harm extends beyond reputational concerns. Unauthorised commercial exploitation may divert economic benefits, mislead consumers regarding endorsement, and unfairly appropriate the goodwill built by the celebrity over time.1
This transformation of identity into a commercial asset has prompted courts to reconsider the traditional boundaries between personal rights and commercial interests.
B. Judicial Recognition of Personality Rights in India
Indian law does not presently recognise personality rights through an independent statutory framework. Unlike certain jurisdictions that have expressly codified the right of publicity, the Indian position has evolved primarily through judicial interpretation. Courts have been required to address disputes involving unauthorised use of identity without the guidance of a dedicated legislative scheme.
The initial recognition of identity-related interests emerged within the broader constitutional discourse on personal liberty and dignity. Judicial interpretation of Article 21 gradually acknowledged that aspects of an individual’s persona warrant legal protection. While early cases focused predominantly on privacy and autonomy, subsequent decisions began to confront situations involving commercial exploitation of celebrity identity. In doing so, courts implicitly recognised that personal identity may possess economic value capable of legal protection.2
This development has been incremental rather than systematic. Instead of articulating a comprehensive doctrine of personality rights, Indian courts have addressed such claims within existing legal categories, adapting constitutional principles, common law remedies, and intellectual property doctrines to the factual circumstances before them. As a result, personality rights jurisprudence in India reflects judicial construction rather than legislative design.
C. Privacy Origins and the Emergence of Commercial Interests
The doctrinal origins of personality protection in India are closely linked to the evolution of privacy jurisprudence. Early judicial reasoning approached unauthorised use of an individual’s identity primarily as an intrusion upon personal autonomy and dignity. The concern in such cases was not commercial gain, but the preservation of an individual’s control over personal information and representation. Courts emphasised that unwanted publication or exploitation of identity could undermine the constitutional value of personal liberty.3
However, the expansion of media industries and endorsement markets gradually exposed the limitations of a purely privacy-based framework. As celebrity identity began to generate tangible economic returns, disputes increasingly involved commercial misuse rather than mere intrusion. In these contexts, the harm was not confined to emotional or reputational injury. Instead, unauthorised use of identity often resulted in unfair commercial advantage derived from the goodwill accumulated by the celebrity.
This transition reflects a broader shift in judicial understanding. Identity came to be viewed not only as an element of personal dignity but also as a source of market value. The recognition of this economic dimension marked a significant development in Indian jurisprudence, laying the foundation for later reliance on intellectual property principles to address commercial exploitation.
D. Trademark Law as an Indirect Protective Tool
Trademark law has emerged as a significant mechanism through which Indian courts have addressed unauthorised commercial exploitation of celebrity identity. Although the Trade Marks Act, 1999 does not expressly protect personality attributes, courts have applied trademark principles such as goodwill, misrepresentation and passing off to restrain misuse of celebrity names and images. Judicial reasoning in this regard is based on the premise that celebrity identity, when used commercially, functions in a manner similar to a trademark by indicating endorsement or association.4
E. Passing Off, Consumer Deception, and Digital Expansion
The doctrine of passing off has played a central role in extending protection to celebrity identity within Indian trademark jurisprudence. Courts have recognised that the unauthorised commercial use of a celebrity’s name, image, or other identifying attributes may create a false impression of endorsement or association. When such use misleads consumers into believing that a product or service is connected with a public figure, it constitutes misrepresentation capable of legal restraint. The resulting harm is not limited to reputational injury. It also affects the economic interests of the celebrity by diverting commercial value that properly belongs to the rights holder.5
The growing reliance on trademark principles has become even more significant in the digital environment. Social media platforms, online marketplaces, and digital advertising networks have created new modes of representation that can imply endorsement without explicit statements. Content may circulate widely and rapidly, making it difficult to distinguish between authorised promotion and unauthorised exploitation. Courts are therefore increasingly required to apply established trademark doctrines to evolving forms of online commercial activity.6
Despite this judicial adaptation, trademark law remains an indirect mechanism for addressing personality rights concerns. Its application depends upon demonstrating misrepresentation and likelihood of consumer confusion. Instances of identity misuse that do not clearly produce confusion may fall outside the traditional boundaries of passing off. This limitation has prompted ongoing debate regarding whether trademark law can adequately address the full range of commercial harms associated with unauthorised exploitation of celebrity persona.7
CONCEPT AND EVOLUTION OF PERSONALITY RIGHTS
A. Meaning and Scope of Personality Rights
Personality rights refer to the legal interest of an individual in controlling the use of attributes that identify their persona, such as name, image, likeness, voice, and other distinctive characteristics. These rights are rooted in the recognition that a person’s identity has intrinsic as well as commercial value. While originally associated with protection of privacy and dignity, personality rights have gradually evolved to encompass economic interests, particularly in relation to public figures whose identity carries significant market value.8
B. Privacy-Based Origins of Personality Rights
The early development of personality rights is closely connected to the evolution of privacy jurisprudence. Legal protection was initially grounded in the idea that individuals possess a legitimate interest in controlling the disclosure and use of aspects of their personal identity. The primary concern was the protection of autonomy, dignity, and the right to be free from unwarranted intrusion. In this framework, unauthorised use of a person’s name or likeness was treated as an invasion of private life rather than a matter of economic harm.9
This privacy-oriented approach reflected an individual-centric understanding of identity. The injury was conceptualised in terms of emotional distress, reputational damage, or loss of personal control. Commercial consequences, if any, were secondary to the dignitary dimension of harm. The focus remained on preventing unwanted exposure rather than regulating market exploitation.
Over time, however, courts began to encounter disputes in which identity carried measurable commercial value. Particularly in the case of celebrities, public recognition translated into economic opportunity. The unauthorised commercial use of such identity attributes produced a distinct form of harm that could not be fully explained through privacy alone. As a result, judicial reasoning gradually expanded beyond purely personal injury and acknowledged that personality interests may also include an economic component.
This transition did not replace privacy foundations but supplemented them. The conceptual shift from dignitary protection to commercial control laid the groundwork for the later recognition of personality rights as enforceable commercial interests within intellectual property frameworks.
C. Development of the Right of Publicity and International Influence
In the United States, this transition led to the development of the “right of publicity,” which recognises the commercial value of identity as a proprietary interest. Courts distinguished between the right to be left alone and the right to control the commercial use of one’s persona. This conceptual separation influenced international scholarship and provided a framework for treating personality attributes as economic assets capable of commercial exploitation and legal protection.10 Although Indian law has not expressly adopted the terminology of the right of publicity, Indian courts have implicitly recognised similar principles through judicial reasoning.
D. Judicial Evolution of Personality Rights in India
The evolution of personality rights in India has largely been judicial rather than legislative. In early decisions, Indian courts addressed unauthorised publication of personal information primarily through the lens of privacy. The Supreme Court recognised that individuals possess a right to safeguard aspects of their personal life from unwarranted intrusion. This recognition laid the groundwork for subsequent judicial developments concerning control over identity.11
As commercialisation of celebrity identity increased, Indian courts began to address cases involving unauthorised endorsements and misuse of celebrity persona. The judiciary acknowledged that a celebrity’s name and image possess goodwill and that unauthorised commercial use could mislead consumers and unjustly enrich the infringer. This marked a shift from purely privacy-based reasoning towards recognition of the commercial dimension of personality rights.12
E. Constitutional Recognition and Doctrinal Ambiguity
The recognition of privacy as a fundamental right has strengthened the constitutional foundation of personality interests in India. Judicial affirmation that privacy is intrinsic to personal autonomy has reinforced the principle that individuals possess a degree of control over how their identity is used or represented. Although the relevant constitutional judgments did not specifically formulate a comprehensive doctrine of celebrity personality rights, their emphasis on dignity, autonomy, and informational self-determination has important implications for identity-based claims.13
At the same time, the absence of a dedicated statutory framework has resulted in conceptual uncertainty. Personality rights in India continue to operate across multiple legal domains, including constitutional law, common law remedies, and intellectual property principles. Courts have addressed disputes through existing doctrines rather than through a unified legal category. As a consequence, the boundaries of personality rights remain fluid and context-dependent.
This doctrinal overlap creates both flexibility and ambiguity. While judicial innovation has allowed courts to respond to evolving commercial realities, it has also produced inconsistencies in reasoning and scope. In many cases, protection depends on whether the claim can be accommodated within trademark law or passing off principles. The lack of clear legislative articulation leaves unresolved questions regarding the precise nature, extent, and limits of personality rights as commercial interests.14
PERSONALITY RIGHTS AS COMMERCIAL INTERESTS
A. Celebrity Identity as a Commercial Asset
Personality rights acquire a commercial dimension when an individual’s identity is used in connection with goods, services, or commercial undertakings. Celebrities, by virtue of public recognition, generate goodwill that can be monetised through endorsements, branding, and merchandising. This commercial value distinguishes modern personality rights from earlier privacy-oriented conceptions and raises distinct legal issues when identity is appropriated without authorisation for economic gain.15
B. Unauthorised Commercial Exploitation of Celebrity Persona
Indian courts have recognised that celebrities, while enjoying public acclaim, also possess a marketable interest in their persona. When their name or image is used commercially without consent, it not only affects personal dignity but also has quantifiable economic implications. In disputes involving unauthorised commercial use, courts have consistently treated celebrity goodwill as akin to commercial goodwill attached to trademarks or business identifiers.16
C. Passing Off and False Endorsement
Judicial reliance on the doctrine of passing off has been particularly visible in cases involving implied or false endorsements. Where a celebrity’s identity is used in connection with goods or services without consent, the central question is whether such use creates a misleading impression of association. If consumers are led to believe that a product is endorsed by or connected with a celebrity, the elements of misrepresentation and damage become directly relevant.
Under Indian trademark jurisprudence, the protection of personality rights through passing off is not automatic but contingent upon the satisfaction of established commercial criteria. Courts have consistently applied the classical trinity test, adapted to the context of celebrity identity. First, the claimant must demonstrate goodwill attached to the persona, such that the name, image, voice, or other attributes function as distinctive commercial identifiers. Secondly, there must be a misrepresentation by the defendant, whether express or implied, leading the public to believe that the goods or services are endorsed by or associated with the celebrity. Thirdly, such misrepresentation must give rise to a likelihood of consumer confusion. Finally, damage must either be established or reasonably inferred, particularly in the form of dilution of endorsement value or loss of commercial opportunity.
In DM Entertainment Pvt Ltd v. Baby Gift House, the Delhi High Court recognised that the unauthorised sale of dolls bearing the likeness and voice of the singer Daler Mehndi constituted commercial exploitation intended to ride upon the plaintiff’s goodwill17. Similarly, in Titan Industries Ltd v. Ramkumar Jewellers, the Court restrained the use of celebrity images in jewellery advertisements on the ground that such usage created an implied association and misled consumers. These decisions illustrate that personality rights, when examined through the trademark lens, operate within a structured commercial framework rather than as absolute proprietary monopolies.18
The decision reflects a broader judicial understanding that celebrity goodwill constitutes a protectable commercial interest. Rather than treating identity misuse solely as a privacy violation, the court recognised the economic dimension of harm arising from misleading commercial association. This approach strengthened the application of passing off principles in personality rights disputes and laid the groundwork for subsequent cases addressing false endorsement claims.
D. Recent Judicial Trends in Commercial Personality Rights
More recently, in Anil Kapoor v. Simply Life India, the Delhi High Court dealt with the unauthorised use of a celebrity’s image in connection with commercial products. The court reaffirmed that the use of a well-known personality’s likeness in marketing and packaging, without consent, could mislead consumers into believing that the celebrity endorsed the product. The court granted interim relief and emphasised that such misuse undermines the economic interests of the celebrity.19
Apart from conventional endorsements, digital platforms have dramatically expanded the avenues for commercial exploitation. The Delhi High Court in Amitabh Bachchan v. Rajat Nagi, addressed the unauthorised use of a celebrity’s photograph and name on a digital news portal in a manner resembling a commercial endorsement. The court noted that even online use can result in confusion and wrongful commercial benefit if it conveys an implied association with the celebrity.20
The Delhi High Court’s decision in Gautam Gambhir v. D.A.P. & Co. & Anr21., provides an important clarification on the commercial threshold required for personality rights protection under trademark law. The plaintiff, a well-known cricketer, sought an injunction against the defendants who were operating restaurants under the name “Gautam Gambhir.” It was contended that such use violated his personality and publicity rights and created an impression of association or endorsement. The Court, however, refused to grant an injunction, observing that the defendants were using their own personal name and that no material was placed on record to establish misrepresentation or likelihood of consumer confusion. The judgment underscores that trademark-based personality protection is not absolute; mere use of a celebrity’s name does not automatically amount to commercial misappropriation. The plaintiff must demonstrate that the use is calculated to deceive consumers into believing in a false endorsement or association. This decision reinforces that personality rights, when protected through passing off principles, remain subject to the traditional requirements of goodwill, misrepresentation, and damage.
These cases illustrate that Indian courts, while lacking a standalone statutory right of publicity, have evolved judicial remedies that recognise the commercial dimension of celebrity identity. By treating such identity as a form of commercial goodwill, courts balance the economic interests of public figures with the need to prevent consumer deception and unfair competition.
TRADEMARK LAW AS A PROTECTIVE MECHANISM FOR PERSONALITY RIGHTS IN INDIA
A. Trademark Law and Personality Rights: Conceptual Interface
The interaction between trademark law and personality rights in India has developed largely through judicial interpretation rather than legislative direction. Although the Trade Marks Act, 1999 was enacted to regulate commercial identifiers such as names, logos, and symbols used in trade, courts have increasingly applied its principles to disputes involving the unauthorised commercial use of celebrity identity. This extension reflects the recognition that certain aspects of a public figure’s persona may operate in the marketplace in a manner comparable to a trademark.
A celebrity’s name or likeness, when used in connection with goods or services, may indicate endorsement, affiliation, or source. In such circumstances, identity performs a signalling function similar to that of a commercial mark. Courts have therefore drawn upon established trademark concepts to determine whether the use of celebrity attributes creates confusion or misrepresentation.22
This conceptual overlap does not suggest that personality rights and trademark rights are identical. Rather, it demonstrates that trademark doctrine has provided a functional mechanism through which courts address commercial misappropriation. By interpreting statutory provisions and common law principles with flexibility, the judiciary has enabled personality-based claims to be examined within the broader framework of market regulation and consumer protection.
B. The Role of Passing Off in Protecting Celebrity Identity
Under Indian trademark jurisprudence, protection is not confined to registered marks. The common law action of passing off continues to operate independently and is frequently invoked in disputes involving the commercial misuse of celebrity identity. The core concern in such cases is whether the unauthorised use of a name, image, or other identifying attribute creates a misleading impression of endorsement or association.
Passing off traditionally requires proof of goodwill, misrepresentation, and resulting damage. When applied to celebrity identity, courts have treated the reputation attached to a well-known persona as a form of commercial goodwill capable of legal protection. If a third party uses that identity in a manner likely to suggest sponsorship or approval, the element of misrepresentation becomes central. The injury lies not only in economic diversion but also in the distortion of consumer perception.
Importantly, the availability of passing off relief does not depend upon formal trademark registration. Even in the absence of statutory protection, celebrities may restrain commercial misuse by demonstrating that their persona has acquired distinctiveness in the marketplace. This flexibility has enabled courts to respond to identity-based disputes within an established doctrinal framework while addressing the commercial realities surrounding celebrity endorsement and branding.23
C. Protection of Celebrity Names and Likeness
Courts have also acknowledged that a celebrity’s name, when consistently associated with public recognition and commercial activity, may acquire distinctiveness in the marketplace. Where such distinctiveness exists, unauthorised commercial use is capable of generating confusion and unfair advantage.
In Abhishek Bachchan v. The Bollywood Tee Shop, the Delhi High Court restrained the use of the actor’s name in relation to commercial products, observing that the name had acquired substantial goodwill and independent commercial significance. The court recognised that the use of a well-known celebrity name in connection with goods could mislead consumers into assuming endorsement or affiliation. The reasoning treated the celebrity’s name as a valuable commercial identifier, even in the absence of formal trademark registration.24
A similar recognition of commercial value was evident in Shivaji Gaikwad v. Varsha Productions. The Madras High Court examined the use of the actor’s name and distinctive persona in a cinematographic context. Although the dispute involved elements of creative expression, the court acknowledged that celebrity identity carries economic weight and may be exploited for commercial gain. The restraint imposed in that case reflected the judicial understanding that identity-based goodwill warrants protection against misleading association.25
These decisions demonstrate a consistent judicial approach: when a celebrity’s identity has acquired market recognition, its unauthorised commercial use may be treated analogously to misuse of a trademark. The protection extends beyond mere reputation and addresses the economic value embedded in public persona.
D. Statutory Support and Judicial Expansion
The statutory framework of the Trade Marks Act, 1999 provides indirect support for the judicial protection of celebrity identity. Section 2(1) (zb) defines a trademark in broad terms as a mark capable of graphical representation and capable of distinguishing goods or services. Although the provision was not enacted with personality rights in mind, its expansive wording has allowed courts to interpret “mark” in a manner that accommodates non-traditional identifiers, including names and other distinctive attributes.26
Judicial interpretation has therefore played a crucial role in extending statutory principles to identity-based disputes. Where a celebrity’s name or likeness functions in commerce as an indicator of source or endorsement, courts have treated it as falling within the conceptual boundaries of trademark protection. This interpretative flexibility has enabled personality interests to be examined through statutory and common law lenses simultaneously.
In DM Entertainment Pvt Ltd v. Baby Gift House, the Delhi High Court reinforced the consumer protection rationale underlying such extension. The court recognised that the unauthorised commercial exploitation of a performer’s identity may dilute established goodwill and create confusion regarding affiliation or endorsement. The reasoning underscored that trademark law serves not only to protect private economic interests but also to maintain integrity within the marketplace.27
Taken together, these developments illustrate how statutory language, when combined with judicial interpretation, has facilitated the partial accommodation of personality rights within trademark doctrine, even in the absence of explicit legislative recognition.
E. Limitations of Trademark-Based Protection
While trademark law has provided an effective avenue for addressing certain forms of commercial misuse, its capacity to protect personality rights remains inherently constrained. The structure of trademark doctrine is oriented toward regulating commercial identifiers and preventing consumer confusion. It does not directly recognise identity as an autonomous proprietary interest.
Relief under passing off or infringement typically requires proof of misrepresentation and a likelihood of confusion among consumers. This requirement narrows the scope of protection. Situations in which celebrity identity is commercially exploited without clearly misleading consumers may not satisfy the traditional thresholds of trademark law. In such cases, economic harm may still occur, yet the available remedies may be limited.
Moreover, trademark law does not comprehensively address issues such as the scope of posthumous rights, transferability of personality interests, or the broader question of whether identity should be treated as property. These concerns extend beyond the conventional objectives of trademark regulation. As a result, reliance on trademark doctrine provides functional relief in specific contexts but cannot fully substitute for a structured legal framework tailored to personality rights as distinct commercial interests.28
PERSONALITY RIGHTS IN THE DIGITAL ENVIRONMENT
A. Digital Commercialisation of Celebrity Identity
The expansion of digital platforms has significantly altered the commercial dynamics surrounding celebrity identity. Social media networks, online marketplaces, content-sharing platforms, and targeted advertising systems have created new avenues through which identity attributes may be circulated and monetised. Unlike traditional media channels, digital platforms enable instantaneous and large-scale dissemination, often without direct oversight or prior verification.
In this environment, the commercial use of a celebrity’s name, image, or voice can occur in multiple forms, including sponsored posts, promotional collaborations, algorithm-driven advertisements, and user-generated content. The speed and reach of digital communication increase the likelihood that identity may be used in ways that imply endorsement without authorisation. The distinction between genuine association and misleading representation therefore becomes more difficult to assess.
This transformation has required courts to address personality rights disputes within the context of online commerce. Traditional legal doctrines must now be applied to circumstances where commercial communication is decentralised and transnational. The digital marketplace thus presents both expanded opportunities for exploitation and heightened challenges for effective legal regulation.29
B. Social Media and False Endorsements
Social media platforms have become a prominent site for disputes concerning false endorsement and identity misuse. The structure of these platforms encourages visual and promotional content, often blurring the boundary between personal expression and commercial messaging. As a result, the unauthorised use of a celebrity’s name, image, voice, or distinctive style can quickly create an impression of endorsement or affiliation.
In Jackie Shroff v. Peppy Store, the Delhi High Court addressed the unauthorised use of the actor’s identity attributes across online platforms. The court recognised that digital misuse for commercial gain may infringe personality interests when it creates misleading associations. It directed the removal of infringing material and acknowledged the vulnerability of celebrity identity in an online environment characterised by rapid content circulation.30
The decision illustrates the heightened risks posed by social media. Content shared on such platforms can reach wide audiences within a short period, amplifying both reputational and economic consequences. Judicial intervention in these cases reflects an effort to adapt established legal principles to the realities of digital communication while preserving consumer clarity and commercial fairness.
C. Digital Exploitation of Voice, Image, and Likeness
The digital marketplace has also witnessed disputes involving the unauthorised use of a celebrity’s voice and likeness for commercial purposes. Unlike traditional advertising formats, digital platforms allow identity attributes to be reproduced, modified, and circulated in varied forms, increasing the risk of misleading representation.
The proliferation of Deepfake technology has further complicated the commercial protection of celebrity persona. Deepfakes involve the use of artificial intelligence to create hyper-realistic synthetic videos, audio clips, or images that falsely depict a person as saying or doing something they never did. When deployed for commercial purposes, such as simulated endorsements, promotional content, or fraudulent schemes, deepfakes operate as powerful tools of misrepresentation. In Anil Kapoor v. Simply Life India & Ors., the Delhi High Court took cognisance of the misuse of the plaintiff’s persona, including AI-generated representations and voice simulations, and granted injunctive relief recognising the commercial value embedded in such attributes.31 Likewise, in Arijit Singh v. Codible Ventures LLP & Ors., the Bombay High Court addressed the unauthorised cloning of the singer’s voice for digital dissemination, treating such conduct as a form of commercially exploitative impersonation. These decisions demonstrate that deepfake technology, when used to create a false impression of endorsement or association, squarely falls within the misrepresentation limb of passing off jurisprudence. The Court considered the unauthorised commercial use of the singer’s name and voice in online contexts. The court observed that such use, when carried out without consent, may generate a false impression of endorsement or collaboration. It recognised that identity-based misuse in digital spaces can cause immediate and irreparable harm due to the speed and scale of online dissemination.32
The reasoning in this case reflects judicial awareness that personality interests extend beyond visual representation. Voice, mannerisms, and other distinctive attributes may also possess commercial value and may influence consumer perception when used in marketing or promotional content. By restraining unauthorised digital exploitation, the court reinforced the principle that commercial identity protection must adapt to evolving technological practices.
D. Posthumous Personality Rights and Digital Content
The issue of digital personality rights has also arisen in the context of posthumous protection. In Krishna Kishore Singh v. Sarla A. Saraogi, the Delhi High Court examined whether personality and privacy rights survive after death, particularly in the digital circulation of biographical content. While the court adopted a cautious approach, it acknowledged that unauthorised digital exploitation of a deceased celebrity’s persona could raise serious legal and ethical concerns.33 This case highlights emerging challenges in regulating digital content related to celebrity identity.
E. Intermediary Liability and Enforcement Challenges
The enforcement of personality rights in digital spaces inevitably raises questions concerning the responsibility of online intermediaries. Social media platforms and hosting services frequently act as conduits for content created by third parties, yet the commercial impact of such content may directly affect celebrity identity and goodwill. Determining the extent to which intermediaries must respond to unlawful use of identity remains a significant aspect of contemporary litigation.
In Swami Ramdev v. Facebook Inc., the Delhi High Court addressed the obligations of digital platforms in relation to the continued hosting of unlawful content. The court held that intermediaries could not rely on blanket immunity where they failed to act upon court directions. The reasoning emphasised that online platforms play an active role in content dissemination and therefore cannot remain indifferent once notified of rights violations.34
The statutory framework of the Information Technology Act, 2000 also informs this discussion. Provisions relating to intermediary status and safe harbour protection require compliance with due diligence obligations. Courts have increasingly interpreted these provisions in conjunction with personality rights claims to ensure that digital misuse does not persist unchecked.35
Despite judicial efforts, practical difficulties remain. The transnational nature of digital platforms, the anonymity of users, and jurisdictional complexities complicate enforcement. Identity-based harm may spread rapidly before effective legal remedies are secured. These challenges underscore the limitations of existing frameworks and highlight the need for clearer mechanisms to address personality rights in an interconnected digital marketplace.36
COMPARATIVE PERSPECTIVE & LEGAL GAPS
A. Comparative Perspective on Personality Rights
A comparative reference assists in understanding the structural position of personality rights within the Indian legal system. In the United States, protection of identity-based interests has developed under the doctrine commonly described as the right of publicity. In several states, this right has been recognised through legislation, granting individuals control over the commercial use of their name, likeness, and other identifying attributes. The statutory recognition of such interests provides greater clarity regarding scope, transferability, and enforcement, and reduces reliance on judicial improvisation.37
The position in the United Kingdom differs. There is no standalone right of publicity. Instead, protection is achieved through established doctrines such as passing off, breach of confidence, and privacy law. Courts have intervened where commercial use of identity results in misrepresentation or unlawful exploitation of goodwill. Although this approach does not formally categorise personality rights as proprietary interests, it has developed through relatively consistent judicial reasoning.38
India occupies a position between these two models. It does not recognise a distinct statutory right of publicity, yet courts have shown willingness to protect commercial aspects of identity through existing doctrines. The absence of legislative articulation, however, results in a fragmented framework in which protection depends heavily on case-specific interpretation. This comparative landscape highlights both the adaptability and the uncertainty present in the Indian approach.
B. Gaps in the Indian Legal Framework
The absence of a dedicated statutory regime continues to shape the contours of personality rights protection in India. Courts have addressed identity-based disputes by adapting constitutional principles, common law doctrines, and trademark frameworks to particular factual contexts. While this approach has enabled judicial responsiveness, it has not produced a clearly articulated legal structure defining the scope and nature of personality rights. Questions relating to duration, transferability, posthumous protection, and the precise proprietary character of such rights remain insufficiently settled.39
A further limitation arises from the reliance on trademark doctrine as the primary protective mechanism. Trademark law is principally concerned with preventing misrepresentation and consumer confusion. Consequently, relief often depends on demonstrating a likelihood of deceptive association in the marketplace. Situations involving commercial exploitation of identity that do not clearly produce confusion may fall outside traditional trademark analysis, even where economic harm to the celebrity is evident.40
Enforcement concerns compound these doctrinal gaps. Digital platforms operate across jurisdictions, making it difficult to secure timely remedies against infringers. The anonymity of online users and the speed of content dissemination often allow identity-based misuse to spread before effective legal intervention can occur. Judicial decisions addressing intermediary liability illustrate the practical complexities of regulating online conduct and ensuring compliance with takedown obligations.41
Taken together, these structural and enforcement limitations indicate that personality rights protection in India remains dependent upon interpretative flexibility rather than coherent legislative design. While courts have provided important safeguards, the absence of statutory clarity continues to generate uncertainty for both rights holders and commercial actors.
Despite its adaptability, trademark law remains an indirect mechanism for the protection of personality rights. The passing off doctrine requires proof of commercial misrepresentation and likelihood of consumer confusion; it does not extend to all forms of identity misuse. Uses that are non-commercial, artistic, or expressive in nature may fall outside its protective scope. Furthermore, injury to dignity or reputation unaccompanied by commercial exploitation may not satisfy the doctrinal requirements of goodwill and damage. This structural limitation underscores that while trademark law has functioned as an effective surrogate for publicity rights in India, it cannot entirely substitute for a comprehensive statutory framework specifically addressing the commercial dimensions of personality.
C. Need for Legislative Recognition
Judicial development alone may not ensure long-term clarity or consistency in the protection of personality rights. While courts have adapted existing doctrines to address commercial misuse of identity, reliance on case-by-case interpretation leaves the legal position uncertain. A statutory framework could provide clearer guidance regarding the nature and scope of personality interests, the extent of permissible commercial use, and the available remedies in cases of infringement.
Legislative articulation would also assist in balancing competing constitutional values. Personality rights intersect with freedom of expression, artistic creativity, and legitimate commercial communication. A structured legal regime could define the boundaries between protected commercial identity and protected expressive use, thereby reducing interpretative inconsistency.42
Such legislation need not replicate foreign models in their entirety. It could draw upon existing intellectual property principles while incorporating safeguards to prevent overbroad control of identity. Clear provisions addressing consent, commercial exploitation, and exceptions for news reporting, parody, or commentary would contribute to greater doctrinal coherence without unduly restricting expressive freedoms.
In light of expanding digital markets and evolving modes of identity use, legislative clarity may provide greater stability than continued reliance on indirect doctrinal adaptation.
SUGGESTIONS: STRENGTHENING THE TRADE MARKS FRAMEWORK FOR PERSONALITY RIGHTS
In light of the limitations identified, certain calibrated amendments within the Trade Marks Act, 1999 may strengthen the protection of personality rights without disturbing the existing statutory structure. Since courts have already relied upon trademark principles to address commercial misuse of identity, legislative clarification within the same framework would provide coherence rather than doctrinal expansion.
1. Clarificatory Inclusion of Personality Identifiers under Section 2
An explanatory provision may be inserted under Section 2 to clarify that names, signatures, likenesses, voice identifiers, and other distinctive attributes of a natural person may qualify as protectable marks where they have acquired commercial goodwill. This would align statutory language with existing judicial practice without creating a separate proprietary regime.
2. Expansion of Section 14 (Prohibition of Registration without Consent)
Section 14 may be amended to expressly prohibit registration of marks incorporating the name,
likeness, image, voice simulation, or other recognisable persona attributes of a living person, or of a deceased person within a defined period, without written consent. This would reduce bad-faith registrations and prevent commercial misappropriation at the registration stage.
3. Statutory Recognition of False Endorsement within Sections 27 and 29
False endorsement claims may be structurally anchored within the existing infringement framework:
• Section 27(2) already preserves the common law remedy of passing off. An explanatory amendment could clarify that misrepresentation arising from unauthorised commercial use of a recognised personality identifier amounts to actionable passing off where it suggests endorsement or affiliation.
• Section 29(8), which addresses infringement by use of a registered mark in advertising, could be expanded to include unauthorised use of a recognised personality identifier in advertising that takes unfair advantage of or is detrimental to the distinctive character or reputation of that identity.
This would integrate false endorsement directly within the statutory infringement structure rather than relying solely on judicial extension.
4. Limited Posthumous Protection through a New Provision Linked to Sections 27 and 29
A new section may be inserted after Section 29 to provide that:
• Where a personality identifier had acquired commercial goodwill during the lifetime of an individual, its unauthorised commercial use after death, in endorsement or merchandising contexts, shall be actionable for a defined period (for example, 20–25 years).
Such protection may be enforceable through representatives or legal heirs, drawing structural analogy from succession principles while remaining confined to commercial exploitation. This would avoid perpetual monopoly while protecting economic legacy.
5. Incorporation of Exceptions in Line with Section 30
Any amendment recognising personality identifiers should incorporate safeguards similar to Section 30, clarifying that protection does not extend to:
• News reporting
• Academic commentary
• Biographical works
• Parody or satire
• Artistic expression not amounting to commercial endorsement
This would ensure harmony with Article 19(1)(a) and prevent overbroad control over identity.
6. Digital Enforcement Alignment with Section 79 of the IT Act, 2000
An interpretative clarification may specify that unauthorised commercial use of a recognised personality identifier constitutes infringing content for the purposes of intermediary compliance under Section 79. This would strengthen takedown enforcement without disturbing the safe harbour structure.
CONCLUSION
The development of personality rights in India reflects a gradual judicial effort to accommodate the commercial realities surrounding celebrity identity within existing legal frameworks. In the absence of a dedicated statutory regime, courts have relied upon constitutional principles, common law doctrines, and particularly trademark law to restrain unauthorised commercial exploitation. Through the doctrines of passing off, misrepresentation, and infringement, personality interests have been protected where identity functions as a market signifier capable of influencing consumer perception.
However, this protection remains structurally indirect. Trademark law is primarily concerned with regulating commercial identifiers and preventing consumer confusion. While courts have extended its principles to personality disputes, such extension depends upon interpretative flexibility rather than explicit legislative recognition. Situations involving digital misuse, subtle forms of endorsement, or posthumous commercial exploitation expose the limitations of relying exclusively on trademark doctrine.
Comparative developments demonstrate that clearer articulation of personality interests can provide greater doctrinal stability. The Indian position occupies an intermediate space, neither fully codifying publicity rights nor confining protection strictly to traditional trademark boundaries. As commercialisation of identity continues to expand, particularly within digital platforms, greater statutory clarity within the trademark framework may enhance consistency without disturbing constitutional balance.
Ultimately, personality rights in India have evolved from privacy-based foundations to recognition of commercial value. The challenge ahead lies not in creating an entirely new regime, but in refining existing legal structures so that the protection of identity as a commercial interest remains coherent, predictable, and aligned with the objectives of market regulation and constitutional safeguards.
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Footnotes
1. J. Thomas McCarthy, The Rights of Publicity and Privacy (2nd edn, Thomson Reuters 2017) 1–8.
2. R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632
3. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
4. DM Entertainment Pvt Ltd v. Baby Gift House & Ors, 2010 SCC OnLine Del 4790.
5. Titan Industries Ltd v. Ramkumar Jewellers, 2012 SCC OnLine Del 2382.
6. Anil Kapoor v. Simply Life India, 2023 SCC OnLine Del 6914.
7. Cornish, Llewelyn & Aplin, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (9th edn, Sweet & Maxwell 2019) 872–879.
8. J. Thomas McCarthy, The Rights of Publicity and Privacy (2nd edn, Thomson Reuters 2017) 15–22.
9. Samuel D. Warren and Louis D. Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193.
10. Haelan Laboratories Inc v. Topps Chewing Gum Inc, 202 F 2d 866 (2d Cir 1953).
11. R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.
12. ICC Development (International) Ltd v. Arvee Enterprises & Ors, (2003) SCC OnLine Del 2.
13. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
14. Cornish, Llewelyn & Aplin, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (9th edn, Sweet & Maxwell 2019) 870–879.
15. J. Thomas McCarthy, The Rights of Publicity and Privacy (2nd edn, Thomson Reuters 2017) 25–28.
16. Cornish, Llewelyn & Aplin, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (9th edn, Sweet & Maxwell 2019) 873–876.
17. DM Entertainment Pvt Ltd v. Baby Gift House & Ors, 2010 SCC OnLine Del 4790
18. Titan Industries Ltd v. Ramkumar Jewellers, 2012 SCC OnLine Del 2382.
19. Anil Kapoor v. Simply Life India & Ors, 2023 SCC OnLine Del 6914.
20. Amitabh Bachchan v. Rajat Nagi & Ors, 2022 SCC OnLine Del 4110.
21. Gautam Gambhir v. D.A.P. & Co. & Anr., CS(COMM) 395/2017 (DELHI HC).
22. Bently, Sherman, Gangjee & Johnson, Intellectual Property Law (5th edn, Oxford University Press 2018) 1012–1015.
23. Reckitt & Colman Products Ltd v. Borden Inc, 1990 1 All ER 873 (principles applied by Indian courts).
24. Abhishek Bachchan v. The Tee Shop & Ors, 2025 LiveLaw (Del) 1094.
25. Shivaji Gaikwad v. Varsha Productions, 2015 SCC OnLine Mad 158.
26. Trade Marks Act, 1999, S.2(1)(zb).
27. DM Entertainment Pvt Ltd v. Baby Gift House & Ors, 2010 SCC OnLine Del 4790.
28. Dev Gangjee, ‘Trade Marks and Personality Rights in India’ (2017) 59 Journal of the Indian Law Institute 401.
29. Lawrence Liang, ‘Personality Rights in the Age of Social Media’ (2020) 62 Journal of the Indian Law Institute 112.
30. Jackie Shroff v. Peppy Store, 2024 SCC OnLine Del 1234.
31. Anil Kapoor v. Simply Life India, 2023 SCC OnLine Del 6914
32. Arijit Singh v. Codible Ventures LLP, 2024 SCC OnLine Bom 2445.
33. Krishna Kishore Singh v. Sarla A. Saraogi, 2021 SCC OnLine Del 3146.
34. Swami Ramdev v. Facebook Inc., 2019 SCC OnLine Del 10701
35. Information Technology Act, 2000, S.2(w), 79.
36. Anupam Chander, ‘The New, New Property’ (2012) 81 Texas Law Review 715 (relied upon by Indian courts for digital property reasoning).
37. J. Thomas McCarthy, The Rights of Publicity and Privacy (2nd edn, Thomson Reuters 2017) 101–110.
38. Irvine v. Talksport Ltd, [2002] EWHC 367 (Ch).
39. Dev Gangjee, ‘Personality Rights and Intellectual Property in India’ (2016) 58 Journal of the Indian Law Institute 389.
40. ICC Development (International) Ltd v. Arvee Enterprises, (2003) SCC OnLine Del 2.
41. MySpace Inc v. Super Cassettes Industries Ltd, 2016 SCC OnLine Del 6382.
42. Subramanian Swamy v. Union of India, (2016) 7 SCC 221.