In January last year, an interviewer asked Arnab Goswami about the origin of his signature line, “the nation wants to know”. Goswami confessed that he had no idea. “Don’t know. I really don’t know,” he said. “Perhaps it started in 2007-’08 and it stayed….And became a catchphrase. When it originated – I don’t know.”
Sixteen months later, Goswami is no longer with Times Now and is engaged in a dispute with the owners of the channel – his former employers, Bennett Coleman & Co Ltd, also referred to as the Times Group – over who owns the slogan.
That being said, a fundamental question that needs answering first is whether anyone can claim proprietary rights in a catchphrase.
The trademark application
In December, Bennett Coleman & Co lodged two applications with the Registrar of Trademarks in which it sought to trademark the phrases “the nation wants to know” and “nation wants to know”. In January, ARG Outlier Media Pvt Ltd, the company established by Goswami to launch his new channel Republic TV, filed two applications seeking to trademark the exact same slogans.
So what exactly is a trademark? According to Section 2 of the Trademarks Act, 1999, a mark includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof. The purpose of a trademark is to distinguish the goods of one person from that of another person. Thus, a trademark serves as an indicator of the source of a product or a service by protecting symbols, signs and logos associated with that particular product or service.
For example, McDonald’s has a trademark over its logo, the capital letter “M” and its slogan “I’m lovin’ it”. The use of that logo at the entrance to a restaurant along with the catchphrase indicates to consumers that they will be eating at McDonald’s and not at KFC. Similarly, Bennett Coleman & Co have a trademark over the Times Now logo and Goswami has already applied to trademark Republic TV, with both now competing to trademark the slogan “the nation wants to know”.
Distinctiveness and usage
Both Bennett Coleman & Co and Goswami have a common purpose at this juncture: proving to the registrar that the slogans can be trademarked under the Trademarks Act. In order to succeed, they need to first satisfy the registrar that the slogan was used in the course of their trade, which is broadcast journalism. This threshold is easily met as the slogan was being used almost every day on the Newshour, Times Now’s daily primetime live debate.
The next requirement is that the slogan sought to be trademarked must be distinctive. Two of the best examples of distinctive slogans are Thums Up’s “taste the thunder” and Amul’s “utterly butterly delicious”. On the other hand, it could be argued that the catchphrase “I’m lovin’ it” is part of everyday usage and lacks distinctiveness. For example, you could ask someone if they are enjoying the weather and they could reply by saying “I’m lovin’ it”.
But McDonald’s was able to get the mark registered by demonstrating that the slogan has been adopted by the consumer to identify the origin of the goods, giving the slogan the necessary distinctiveness. So if you see the slogan “I’m lovin’ it” on a product, you are likely to associate it with McDonald’s and McDonald’s alone.
Bennett Coleman & Co are likely to adopt a similar tack and argue that the phrase “the nation wants to know” has acquired the requisite distinctiveness as the consumer has adopted the slogan to identify it with their show, the Newshour, which is still on air following Goswami’s departure from the channel in November. Goswami, on the other hand, is likely to argue that the consumer has adopted the catchphrase to identify it not with Newshour, but with him, Arnab Goswami the anchor.
Assuming that both parties are successful in demonstrating that the phrase is distinctive, one final requirement is that the phrase must not have become a part of the customary usage in the concerned trade, in this case journalism. What this means is that an application to trademark terms like “breaking news”, which are used by journalists everywhere, will certainly be rejected.
One can safely say that no news anchor, be it Rajdeep Sardesai, Srinivasan Jain or Zakka Jacob, has run the risk of using the phrase “the nation wants to know” on television. Goswami alone used it, he popularised the phrase nationally through the Times Now channel, it remains his signature line and the catchphrase arguably should be trademarked.
Once the registrar is satisfied that the mark should be granted, the dispute will centre on who is the rightful owner or proprietor of the trademark. According to trademark lawyer Anusuya Nigam of Tryaksha Legal, the terms of the employment contract signed between Goswami and Bennett Coleman & Co will be key to resolving this dispute.
“India does not have any specific legislation that addresses the rights and obligations arising out of the creation of intellectual property by employees during the course of their employment,” said Nigam. “Therefore, if an employee asserts ownership over intellectual property he or she has created for their employer, a court will look at the express terms of the employment contract in deciding who owns the intellectual property.”
If Goswami’s contract has a clause declaring that all intellectual property created by him while an employee of Times Now belongs to the employer – the Times Group has stated that there is indeed such a clause in all employee contracts – the mark will be granted to Bennett Coleman & Co. However, all is not lost for Goswami if the trademark is granted to his former employers and he can possibly resort to asserting what are known as “personality rights” under common law.
Common law rights
Common law is essentially judge-made law that exists independently of statutory law, which is created by legislation. The classic example is defamation, which is a criminal offence under statutory law, namely the Indian Penal Code, but is a civil wrong under common law and is not codified in any legislation. The courts have consistently held that registration itself does not create a trade mark: “The trade mark exists independently of the registration which merely affords further protection under the statute. Common law rights are left wholly unaffected.”
Goswami’s best bet is to follow the example of Rajnikanth who was able to successfully obtain protection of his style of dialogue delivery, as it constituted an integral part of his personality and publicity rights. In that case, the Madras High Court placed personality rights on par with the right to privacy under Article 21 of the Constitution. “The right of publicity vests in an individual and he alone is entitled to profit from it,” said the judgement. Therefore, any attempt by Bennett Coleman & Co to profit from Goswami’s personality rights without his express consent is not permissible.
Goswami could concievably argue that the use or delivery of the phrase by TV anchor Anand Narasimhan after his departure from the channel amounts to a violation of his personality rights. Goswami will have to prove that the phrase “nation wants to know” is identifiable with him and is an integral part of his personality to be successful in preventing the further use of the slogan by Times Now.
The best advice Goswami’s lawyers can give him is to withdraw the trademark application he has filed and to oppose Bennett Coleman & Co’s application. Goswami’s interests are best served if the phrase is not trademarked and the public at large is allowed to use it as the slogan is so uniquely associated with him. Even if the phrase is trademarked by Bennett Coleman & Co, he can always assert his personality rights, where he is on a very strong footing.
Not matter what the outcome of this dispute, Goswami has already won in trademark fashion, with the Times Group playing right into his hands by sending him a legal notice. The nation is talking about Republic TV now, and it is only a matter time when Goswami will be back ruling the roost when it comes to TRPs.
Abhishek Sudhir has a master’s degree in intellectual property law and is the founder of Sudhir Law Review, a legal education website.