YEH JAWANI HAI DIWANI.....
Hamdard National Foundation v.
Hussain Dalal,
CS(OS) No.1225/2013, decided
on June 07, 2013
DELHI HIGH COURT
HAMDARD NATIONAL FOUNDATION
& ANR., the Plaintiff in this case have filed the instant suit for
infringement of trade mark, passing off, commercial disparagement and
tarnishment of goodwill and damages. Along with the suit, the plaintiffs have
filed the interim application seeking prayers as contained in the application.
HAMDARD NATIONAL FOUNDATION is
a well known laboratory in the field of ayurvedic preparations and is carrying
on business for more than 100 years from now. It is stated that the plaintiffs
have given several useful products to the public at large which are not merely
famous in India but world over. The plaintiffs state that the trade mark
ROOHAFZA is one of the most popular trade mark in respect of sharbats which gives
cooling effect to the human body. The said trade mark has been put to extensive
use since the year 1907 and the trade mark ROOHAFZA is registered since the
year 1945 prior to independence of this country.
In the light of the same, it
is the grievance of the plaintiffs that the defendants have recently released
the movie with the name YEH JAWAANI HAIN DEEWANI which has hit the cinema halls
and the said movie contains some dialogues which somehow show the well known
product ROOHAFZA in the manner which is detrimental to the interests of the
plaintiffs as a proprietor. The plaintiffs in order to fortify its stand has
reproduced the offending dialogues in the film which are reproduced as under:
Son: “Yeh Roohafza Bahut
Bekaar Hai”
Mom : “Sab Thik Ho Jayega”
Son: “Siwaye Is Roohafza Ke…… Bahut Bura Hai”
Counsel for HAMDARD argued
that
a) that
the existence of the dialogues in the movie would definitely damage the good
will and reputation of the plaintiffs and is an actionable wrong in common law
as well as in statute.
b) no
merchant or trader is entitled to say that the product of the competitor is bad
or of inferior quality.
c) the
same Hero (actor of the film) on one hand is promoting the PEPSI drink and in
the present movie he is speaking dialogues which are detrimental to the product
i.e. ROOHAFZA drink against the interest of his client.
HIGH COURT OBSERVES the matter
and opined as follows:
a) What
is an infringement is not merely visual representation of the product in the
bad light under the provision of Section 29 (9) of the Act but it is the
infringement of the trade mark if the same is caused by way of spoken use of
the words and the visual representation of the said words.
b) the
cinematograph film is a visual representation of the motion picture containing
sound recordings, dialogues which are presented in the audio and video format
before the public at large. The said cinematograph film is definitely covered
within the ambit of the visual representation which is larger genus under the
provisions of Section 29 (9) of the Act. Thus, the provision of the Section 29
(9) further makes a statutory infringement of the registered trade mark if the
same is caused by the spoken words.
c) Freedom
of speech includes the right to freely express one’s opinions by words of
mouth, writing, printing and all other means is a freedom guaranteed to
citizens of India under Article 19(1)(a) of the Constitution of India. It is
also recognized that freedom of speech is not an absolute unlimited right.
Article 19(2) provides reasonable restrictions on what is guaranteed by Article
19(1)(a) of the Constitution as law provides some safeguards against abuse if
it causes likelihood of prejudice to a person or party without his fault.
The High Court of Delhi in its
order passed that
a) The
said offending dialogues in the film are uncalled for, the same are in poor
taste and these could have been avoided. The same are likely to tarnish the
reputation of the plaintiffs.
b) In
view of the above discussion and explicit provisions of the Trade Marks Act, it
is clear that the infringement of trade mark can be caused by the spoken words
and visual depiction of the same in the form of presentation in the movie.
c) Therefore,
the prima facie case is made out by the plaintiffs for infringement of trade
mark and also of passing off which may injure the reputation of the plaintiffs
before the public.
d) The
balance of convenience and irreparable loss is not in favour of the plaintiffs
as the movie is already put to release and thus the same would be beyond the
control of the defendants to put any kind of disclaimer in the already released
movie.
e) However,
certainly, the defendants can be prevented to release the home video version of
the movie or any version of the movie on television which should not contain
the objectionable dialogues as contained in para 19 of the plaint and discussed
above which can be done by the defendants by editing the film.
Delhi High Court has prevented the release on TV of the said movie.....
