Written By: Avasi Mohanty
Bollywood is widely known to be the breeding ground
for Masala. Most of this “Masala” is not only limited to gossip,
disputes and patch-ups, but also to several legal snags that keep
hopping up due to some reason or the other. Intellectual property
squabbles nevertheless are the most popular ones.
Filmmakers and producers are often
accused of trademark and copyright infringements which easily acquire
center-stage because of the sheer media attention they get. In yet
another major instance of trademark violation, popular humor and
Bollywood website Santabanta.com
has filed an infringement suit in the Delhi High court against Cinetek
Telefilms Pvt. Ltd. and Viacom18 media’s movie “Santabanta Pvt. Ltd.”
which will feature Boman Irani and Vir Das in lead roles. As per the news reports,
petitioner has sought court’s decree for permanent injunction against
the release of the movie and is also claiming damages along with movie
credits for the infringement. The court, however, has not granted an
injunction so far. The director of Cinetek Telefilms on the other hands,
claims to have made the movie under a valid license from Motion
Pictures Pvt. Ltd and it remains to be seen if latter has a better right
over the usage of the mark as compared to the plaintiff. As per the
recent order released on 27/02/2015, there is a possibility that the matter will be resolved between the parties through mediation.
This is not the first time Bollywood has witnessed a case of violation of trademark rights. Of late, a controversy cropped up when the makers of zandu balm sued producer
Arbaaz Khan, for allegedly using their product mark in a popular song
of his movie Dabbang. Another popular issue was the “hamara bajaj” case,
a hushed up matter where Bajaj auto ltd. filed a suit against
J.A.Entertainment Pvt. Ltd, owned by John Abraham for the infringement
of their trademark hamara bajaj. The Bombay high court granted a
permanent injunction against the defendant and restrained them from
using the tagline in the proposed film.
It won’t be hard to conclude that title
of a film cannot be a subject matter of trademark if one ponders on the
wordings enunciating the essentials of a valid trademark. This is
because a trademark distinguishes goods and services of one proprietor
from the other and unless this ‘association’ is absent, a ‘mark’ can
never qualify for protection as a ‘trademark’. Nevertheless, after
decisions from courts based in US and the imitation of their rationales
by courts in other common law countries (including India), it is indeed
possible to register a movie’s title as trademark. However, the crux of
the concept is that it’s comparatively easier to procure registration
over titles for series of movie as compared to a single movie because of
the differing level of distinctiveness. In case of single movie titles,
secondary meaning has to be established to cross the minimum threshold for distinctiveness.
Trademark infringement issues for
unauthorized usage of trademarks by movie produces and song makers is
bound to create a fuss. With the surge in level of obsession with movies
witnessed across the world, copyright and trademark issues are bound to
grab the lime-lights. In one the recent blogs
only, we had written about a serious copyright claim filed against the
directors and producers of movie PK. Amitabh Bachachan’s controversial
movie Nishabdh was a subject matter of court litigation in year 2007. Outside India also, a few years back, Disney also filed a trademark infringement suit for unauthorized use of its movie title FROZEN by the alleged infringer. Similarly, release of a movie titled ‘Age of Hobbits’ was successfully stopped by Warner Bros. for being similar to its ‘Hobbit’ series.
Albeit
it remains to be seen how Indian Law evolves further on this point,
movie producers and common proprietors are leaving no stone unturned to
protect their intangible assets. The market implications of such matters
can create a big dent in the pockets of both MNCs and filmmakers.
Rampant copyright and trademark violations in the recent decade has
revealed the high level of plagiarism in the film-making industry. While
it was pretty premature to forbid such attempts on the basis of
undeveloped or half bred Laws earlier, court decisions and out of court
settlements have made it clear that IP issues cannot be taken lightly.
The fuzzy line between creativity
inspired by a work and a banal trait copied from the right of others is
not that blob any longer. An equilibrium is thus need of the hour where
there is a perfect balance between creativity and inspiration, so as to
ensure innovation and competitiveness in all sectors of film-making.
For more information, contact lex protector
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