Wednesday 12 June 2013

Legal Suit for infringement of trademark through dialogues.....

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..... 

9 comments:

  1. Good judgement by best reasoning method,applying judicial mind

    ReplyDelete
  2. Its very harsh on plaintiff.... It seems to continue same types of cases in future..

    ReplyDelete
  3. Seems in future likely to be appear same types of cases

    ReplyDelete
  4. nice post..
    please do visit my blog too.. i have just started with the same..

    http://learningoflaw.blogspot.in/

    ReplyDelete
    Replies
    1. thank u aarshi ji... I will visit ur blog for sure

      Delete

Extension of Trademark Hearing

Public Notice- Adjournment of hearings related to trademark scheduled between 17/03/2020 to 15/04/2020 In view of advisory issued by M...