Hollywood actor Matthew McConaughey has filed multiple trademark applications in the US through J.K. Livin Brands, Inc., an apparel company he owns. This company is linked to the Just Keep Livin Foundation, a non-profit organisation co-founded by McConaughey and his wife. Among the trademarks filed are his gestures and well-known catchphrase from the movie Dazed and Confused, “alight, alright, alright.” These filings have drawn attention, not just because they belong to a famous actor, but because they highlight Mr. McConaughey’s attempt to trademark specific expressions associated with him and protect them as a brand.

The actor filed eight trademark applications through his apparel company in 2023, comprising of sound and motion marks, with registrations granted last year. The details of the registrations are as follows:

  • Registration Number- 7995851 in class 41
  • Registration Number- 7931810 in class 09

The description of these trademarks provides for a Motion Mark featuring McConaughey outdoors, performing a short sequence of arm and body movements lasting about 7 seconds.

  • Registration Number- 7995959 in class 41
  • Registration Number- 7893248 in class 09

The description of these trademarks provides for a Motion Mark featuring Matthew McConaughey indoors, seated, with subtle head and facial movements, including a smile, lasting about 3 seconds.

  • Registration Number- 7995852 in class 41
  • Registration Number- 7995858 in class 09

Description of the above trademarks provides for a Sound Mark consisting of a man saying “JUST KEEP LIVIN’, RIGHT? ……. “I MEAN” ……… “WHAT ELSE ARE WE GONNA DO?”

  • Registration Number- 7995951 in class 41
  • Registration Number- 8070191 in class 09

Description of the above trademarks provides for a Sound Mark consisting of a man saying “ALRIGHT ALRIGHT ALRIGHT”, with a distinctive pitch variation.

This decision by McConaughey to register his distinctive expressions stems amid numerous concerns over deepfake videos, AI cloning, and similar technologies, especially involving celebrities. According to the Lanham Act, 15 U.S.C. § 1127, the term “trademark” includes any word, name, symbol, or device, or any combination thereof— (1)  used by a person, or (2)  which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this chapter, to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.

A trademark acts as a brand or a source identifier for the goods or services for which it is used/ registered and helps distinguish them from those offered by others. In this context, the above registrations secured by Mr. McConaughey in classes 9 and 41 covering downloadable audio-visual content and entertainment services do not necessarily provide a blanket protection for his sound or motion/ gesture in general, rather the protection will only extend to the particular sounds/ catch phrases and gestures of the actor as mentioned in the above descriptions of the trademarks. The step taken by the actor is indeed a new way to limit the illegal use of one’s sound or gestures. However, the perception that it will protect his overall image, sound, and likeness from misuse would be far-fetched. For example, if anyone creates a deepfake or a cloning video or audio of Mr. McConaughey, it is highly unlikely that the actor can rely on the above registrations alone to stop such misuse. Such misuse is better addressed under personality rights or laws related to privacy.

In India, celebrities are approaching the Courts to safeguard their identity, voice, image, and dialogues from being misused by relying on Personality Rights. This trend arises from the absence of a sui generis law for protecting personality rights. These rights are recognized under the broader category of right to publicity and privacy rights. Courts in India have, in many cases recognized personality rights as enforceable, especially when there is misuse in advertising or digital content.

The Trademarks Act in India offers limited protection when compared to the Personality Rights.  The definition of ‘trademarks’ requires that a trademark be linked to specific goods and services. The requirement in law for graphical representation and filing for specific goods or services limits its scope in relation to the personal identifiers of a celebrity.  Even if an actor registers a sound mark for one of his famous dialogues or a catchphrase from his movie, the registration secured will only be for that particular catchphrase and not for his voice in general.

In this backdrop, we will have to wait and see if Indian celebrities opt to register sound or motion trademarks as an additional safeguard for their personality identifiers, akin to Mr. McConaughey’s approach. The Indian Trade Marks Act allows registration of non-traditional marks such as sound marks and motion marks, provided they can be represented graphically. These applications are likely to face strict scrutiny and the Registry may demand evidence of acquired distinctiveness, i.e. the gesture or sound filed is unique, widely recognized and used commercially, i.e. in endorsements, merchandise, or branding.

Trademark registrations for sounds and gestures may not shield a celebrity’s entire persona, but they remain a practical safeguard against commercial misuse. With the rise of deep fakes and AI-driven misuse of image and voice, celebrities are faced with new threats to their persona each day. In this digital age, turning to every available legal tool to defend their persona, including trademarks, is less a choice and more a necessity for a celebrity, echoing McConaughey’s own words- ‘What Else Are We Gonna Do?’

By Shwetha S. Menon