Vedant Saxena
While it is true that fictional characters have not traditionally been considered as works of art separate from the work they originally appeared in, or as an indicator of origin, in light of a plethora of judgments over the years, the relevance of fictional characters has been recognized by courts and certain arenas of protection have been granted. However, the jurisprudence of providing protection to a fictional character becomes a lot more complicated when a particular character is the subject of both copyright and trademark protection. Several jurists opine that on account of such dual protection, the very purpose behind the forces of copyright law, i.e., to encourage creativity by stifling the material available to future authors, shall be dampened.1 Other jurists, on the other hand, contend that since the nature of protection granted by copyright and trademark law is entirely different, the rights conferred under both laws are capable of co-existing, if implemented in a proper manner.2 The majority of the issues concerning such dual protection are yet to be resolved by courts in a meaningful manner. However, the limited jurisprudence available on the topic does provide ways in which copyright and trademark protection could co-exist and thereby provides an invaluable insight as to how courts could resolve this issue and determine the appropriate ambit of dual protection. Through this paper, the author seeks to decipher potential ways to counteract the trademark-copyright divide in light of certain relevant legal pronouncements.
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