Plaintiff must prove concrete evidence of defendant's unauthorized post-contract image use and nexus; weak evidence fails claim for damages.

JUDGMENT :

K. GOVINDARAJAN THILAKAVADI, J.

1. The Original Side Appeal is filed challengin the order 07.04.2017 passed by the learned Single Judge in C.S.No.284 of 2011.

2. The above suit has been filed by the plaintiff seeking a judgment and decree directing the defendants to pay a sum of Rs.1,00,00,000/- (Rupees One Crore only) towards damages for unauthorized use and exploitation of the plaintiff’s image, reputation and personality rights, and for a consequential relief of permanent injunction restraining the defendants from in any manner using the plaintiff’s photographs, videos or likeness for commercial purposes.

3. For the sake of convenience, the parties herein are referred to as arrayed in suit.

4. The sum and substance of the case of the appellant/Plaintiff is that, the appellant/plaintiff is a well-known and reputed multi-lingual film actress enjoying wide popularity and goodwill among the public. She has established a significant reputation in the advertisement field, and her presence carries substantial commercial value. The defendants approached the appellant/plaintiff with a proposal to promote the products of the first defendant by engaging her as their brand ambassador. Taking into account her popularity and market value, the defendants offered an honorarium, and pursuant to negotiations, an agreement dated 07.10.2008 was entered into between the appellant/plaintiff and the first defendant, in the presence of the second defendant. The said agreement was valid for a period of one year, i.e., up to 06.10.2009. In terms of the agreement, the appellant/plaintiff promoted the products of the first defendant, and it is the specific case of the appellant/plaintiff that owing to her appearance in the advertisements, the sales and market reach of the first defendant’s products increased manifold. Despite such benefit, when the defendants sought extension of the agreement, the plaintiff declined to continue. It is the categorical case of the appellant/plaintiff that upon expiry of the agreement, the first defendant had no manner of right, authority, or consent to use her image or likeness. However, during the last quarter of 2010, when the appellant/plaintiff was engaged in negotiations with M/s. Wipro Limited (Consumer Care and Lighting Division) for endorsement of their products, she was shocked to learn that the first defendant, being a competitor, continued to use her photographs and videos for promotion of their products without authorization.

4.1. Immediately upon such knowledge, the appellant/plaintiff issued oral warnings to the defendants and also took up the matter through the second defendant, their agent. Despite such warnings, the first defendant clandestinely continued to exploit the appellant/plaintiff’s image through various media, including television commercials, print publications, and product packaging, particularly in respect of soaps manufactured during November 2010 to February 2011. Such unauthorized use has seriously prejudiced the appellant/plaintiff’s commercial interests and affected her professional engagements with other entities. As the defendants failed to desist from such acts, the appellant/plaintiff issued legal notices dated 18.01.2011 and 01.02.2011. The reply dated 09.02.2011 sent by the first defendant was evasive and contained untenable denials. The continued unauthorized exploitation of the appellant/plaintiff’s image amounts to infringement of her rights, violation of contractual obligations, and unlawful commercial enrichment at the expense of the appellant/plaintiff. Despite