#funlearn

“Shape Fill – Flat”

The Shapes that we have been learning simply fill them up with black or any colour of your choice.

“Fill – Double Line”

As simple as create a shape + draw a smaller shape of the same inside then choose which ever you wish to fill.

“Fill – Double Shape”

Take 1 external shape + 1 different internal shape = Mixing of shape + Fill 1 of the shape.

This can be a bit tricky if you can’t foresee how it will look when it all comes together. Try and pay more attention when you practice this type.

IPRs in Animated Works 

An article written by Shobha Menon in 2007 read as “IPR to give industry an animated look”. It briefly discussed upon the then prospects and growth of the Indian Animation Industry with the then emerging technologies pertaining to VFX and others for making animated movies and cartoon shows. The article concluded on propitious marginalia about the opportunities for making India a hub for animation with the help of IPRs relating to animations. 

Fast-forward to the current era, the Indian Animation IP production (excluding animation services) has a year-on-year double digit growth - almost double of what it was in 2012. 

The Indian animation has grown to over 100 animation character brands today, some of them being Motu Patlu, Shiva, Little Singham, Krishna, Aryan, Dabang Girls, Krish Trish and Batliboy, Jr. Gol Mall, My Bhoot Friends, icko & Super Speedo, Sab Jholmaal, Honey Bunny, Pakdam Pakdai, Rudra, Keymon Ache, Roll No 21, Super Bheem, Andy Pirki, Oye Golu, Gattu Battu, Mighty Raju, Kalari Kids, Kumbha karan, Chotti Anandi, etc. 

With a technological boost like never before, Indian media, entertainment and technology companies are growing at an accelerated pace on the back of growing acceptance of our content, especially in animation, VFX, gaming and AR/ VR. The Indian animation and VFX have gained a lot of traction among the international producers and production houses. Top Indian companies have attained leadership to create content and distribute them in new markets. 

However, every producer needs to strategize their approach for their respective IPs based on the strengths and weaknesses of the show they are producing. India has become a creator of IP and this has led to the realization that we need to protect our Intellectual Property. IP in the animation and gaming industry are the legal rights over creations and are protected by copyrights, trademarks for making better margins. 

The following are the relevant IPRs with respect to animation industry in India :-

Copyright Protection 

The most effective way of IP protection for animations would be that in the form of Copyrights. Several sections (as follows) of an animated show or movie can be copyrighted either in conjunction or separately :-

The drawings and sketches for making the animated character.

The animated character itself.

The story and/or script of the show/movie, if any.

The dialogues and songs of the show/movie, if any.

Other marketing aspects.

The Indian Copyrights Act, 1957 covers all the aspects for obtaining a strong copyright protection for the animated shows/movies, with distinct animated characters in it. Along with the statutory provisions, various judicial cases have also assisted in strengthening the Copyright protection regime for animated works. In case of DC Comics v. Towle the court opined that the ‘bat-mobile’ (the animated work) has unique qualities that gives it a different identity and provides for a special element, making it eligible for being granted with copyright. In another case of Star IndiaPvt. Ltd. v. Leo Burnett, the court opined that the animated character must have public recognition in independent life.

While copyright registration is not mandatory, given the nuances in relation to animated works, it would be prudent for filmmakers to obtain copyright registration for their key animated characters. Registration of copyright is an effective way to enforce one’s economic rights. In case of any dispute, copyright registration helps with the availability of necessary records and has evidentiary value. Proper IP Asset Management will make certain that all showings of the animated work provide global revenue to the copyright holders.

Trademarks Protection

While the copyright in a cartoon character, would eventually expire (after 60 years beyond the life of the creator) and fall into the public domain, however, the trademark does not expire after a set period of time and can live on indefinitely. The Trademark law not only protects the cartoon character, but also extends the protection to the character’s name and likeness. Animated works are precisely protected under Section 2 of the Trademarks Act, 1999 which mentions that cartoon characters, names, logos etc. are protectable as a mark. 

Along with the statutory provisions, various judicial cases have also assisted in strengthening the Trademark protection regime for animated works. In case of Disney Enterprises Inc vs. Gurmeet Singh, the Delhi HC recognised mark ‘DISNEY’ as a well-known mark. In another case of Warner Bros. Entertainment Inc. vs. Harinder Kohli and Ors., Warner claimed to have secured trademark registration in India for the word mark “HARRY POTTER” and alleged infringement by the Defendant owing to Defendant’s act of naming their film “HARI PUTTAR”, which is visually and phonetically similar to their mark. The court rejected the prayer to injunct the Defendant on the ground that the trademark HARRY POTTER is different from HARI PUTTAR.

Since the animated character being represented are mostly in a three dimensional or pictorial form on goods and services, such character can be protected under the trademark law. 

Animated works and cartoon characters are the most popular merchantable characters ever created thus fictional character merchandising is the use of fictional or cartoon characters in merchandising for commercial gains. 

Patent Protection

A considerable and significant amount of technological equipment and expertise is used to make an animated show/movie – the camera itself as well as equipment for lighting, editing, sound and special effects. Many of these technological advancements pertaining to animated works can be protected by patents. For instance, the Dolby sound system, 3D CGI imagery using revolutionary new motion-capture techniques, etc. have all been patented. However, the patent protection can be considered more of an indirect method to protect the animated work, given that it does not cover the abstract idea itself. 

With the growth of broadband, mobile technologies and emergence of digital media, the animation industry is witnessing a rapid transformation in a converging world. In this wake, IPRs and IP Asset Management is extremely important for its creators in the media and the entertainment sector, especially with respect to younger populations of India.

CASE DETAILS

The Plaintiff for this case: B V Ilango 

The Defendant for this case: Rank Xerox Ltd. & Ors.

Court: IPAB

Decision Date: 21st September of 2012

INTRODUCTION

Bigger are the brands, greater is the need for protection from not just infringement and falsification but also “trademark genericide”. This concept isn’t much talked about but this problem exists more than it is thought to be. For example- nowadays if one wants to search something, “Google it” is a common phrase used in day to day conversations. Similarly Zipper, Aspirin, Frisbee, sellotape etc. they all share a common fate of being mistaken as the product itself rather than identifying the Source. This is exactly what trademark genericide is.

While “Google” has held on to their trademark and have avoided genericide in the case of “Elliott v. Google Inc.”. In 2017, Google had to actually face intense proceedings to prove that their customers in the market still identify them as search engine and that their mark is still relevant and hasn’t become synonymous to “surfing the internet”. In this case it was observed that a trademarks don’t become generic just like that. In fact only the courts can declare it to be generic. A certain David Elliot tried to register 763 domain names which included the search engine “Google”. He filed a suit stating that Google is primarily a substitute for “internet searching”. Thus, it’s generic.

Eventually the jury was not convinced that Google had become generic as Google won the UDRP proceedings. They won on various grounds including the evidence of that fact that the domains were being registered in bad faith. Google presented public surveys to the Court in order to show that that the public still perceived it as one of the search engines. In the Indian context “Xerox” happens to be a glaring example of trademark genericide. This article attempts to explore this case.

BACKDROP OF THE XEROX CASE

Xerox is actually a proper trademark and is not synonymous to photocopying process. The Company name is Rank Xerox Ltd. this company has faced a long running battle to stop its name from being declared as generic. This trademark is registered worldwide. But sadly it seems to have become a victim of its own fame as it was understood as a common verb in some parts of the world. This company actually just manufactured the machines used to photocopy and print material. However, in 2003 this company was faced with great deal of difficulty when it realised that its brand is diminishing in value. That is exactly what the early stages of trademark genericide looks like. 

Firstly, the brand value diminishes as the general public start using it in their everyday speeches and overtime there is an absolute decline in terms of recognition of the brand name at all. Finally, the brand name becomes synonymous to the product or process it used to identify the source of and loses its distinctiveness, the very character that made it distinct in the first place.

The most interesting part of this case was that the IPAB was faced with the issue that “Whether a seemingly generic term like Xerox remain a registered trademark under the Trade Marks Act, 1999 or not?”It is also rather imperative to note that the owners of the company put in legitimate efforts to prevent “Xerox” from being declared as generic. They made efforts since 2003. We shall find out in the course of this article that result of these efforts.

CASE FACTS

A few rectification applications were filed seeking the removal of “XEROX” as a trademark. The applicant went as far has filing several volumes of papers including rulings of various High Courts, cause lists etc. from foreign jurisdictions and even Indian circulars to show evidence of their claim that “Xerox” has become generic. The registered proprietor on the other hand filed various evidences to show that it had arrested the genericide by preventing the inappropriate use of the word “Xerox”. They issued a number of Cease and Desist Notices to various shops and even Government Departments.

The interesting turn came when the Government departments responded saying it was an “inadvertent mistake”. This shows how far the public didn’t know the background “Xerox” held. The owners of the mark held numerous campaigns in order to establish amongst the public that they hold trademark over “Xerox” and that it is not synonymous to photocopying.

ARGUEMENTS MADE

The applicant filed voluminous evidences to support their claims. The IPAB in fact appreciated the effort taken by the applicant as all evidences were legitimate and relevant. The applicant relied on the “Enrique Bernat FSA v. Guadalajara Inc.”, where a person wasn’t permitted to monopolise the term “Chupa”, which meant “lollipop” in Spanish.

The point they stated was that since Xerox’s situation corresponds to that of “Chupa”, it must be declared as generic. The proprietor objected to the same and stated that in no way this applied to the case as an alternative word “photocopy” was still understood and existed. Thus, failing the test of “Publici Juris”.

Additionally, the respondent also proved their sincere efforts to maintain the distinguishability of the mark. They produced various responses of their Cease and Desist Notices by Government departments and Port Trusts who agreed to delete the word “XEROX” and instead include “photocopy”.

IPAB’s DECISION

The IPAB came up with interesting views with regard to the applicant’s argument which included reliance on the Enrique Bernat case. It held that this case was inapplicable on facts. The IPAB stated that “Chupa Chups” case, giving exclusivity to ‘Chupa’ or lollipop would only prevent makers of lollipop in the market from entering the market with “chupa” as name of their company or product. On the other hand in the Xerox case none of the competitors ever complained about the existence of the mark till date. The IPAB actually accepted the arguments of the respondent regard the existing word (photocopy) and also noted that it was still used and understood separately by competitors which weighed against the arguments of the applicant.

Thus, it failed the test of “Publici Juris” which means the mark still sustains. There were 3 main points that gave Xerox a clear cut win. Firstly, the Exclusive rights of the trademark held by the Respondents (Xerox) were publicly accepted. Secondly, the mark existed on the Register for long which shows the efforts made to renew the trademarks from time to time. Lastly, the presence of the original names and its separate understanding amongst the public.

The IPAB also recognised the fact the Xerox had taken sincere efforts by using methods like “Trademark Policing”. Policing unauthorized uses of their trademark really helped their case.

The background of this case gives us an interesting proposition that Genericide can be battled through trademark Policing and prevention of naked licensing. However, does it guarantee a long term solution? This question still remains unanswered. However, on a personal note I believe there is no one time solution. As Xerox sets an example that only constant efforts to maintain a trademark can guarantee its distinguished recognition. Additionally companies must avoid naked policing and frivolous distributors who would misuse their mark and reputation. Cease and desist notices can also help greatly. Surveys and campaigns was a unique evidence placed by Xerox which worked well in their favour.

However, there is one thing that is quite baffling. The lack of legal provisions in the entire judgement. The framework of the Trade Marks Act, 1999 was not even spoken of once. This rather leads to an uncomfortable conclusion that perhaps the IPAB (now dissolved) only perused through the voluminous evidences and forgot to consider the provisions of law.

Yet on a brighter note XEROX sustained its status as a registered mark. But the reality today still remains close to what it was in 2012, i.e. there still exists local shops which simply use Xerox as a synonym to photocopying. A realistic perusal of the market today would probably render “Xerox” as a generic mark.