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Disparaging Rivals: Why Bombay HC Restrained Amul From Broadcasting Two TV Ads

The Bombay High Court has restrained Gujarat Co-operative Milk Marketing Federation Ltd (GCMMF), which markets ice cream under brand name Amul, from broadcasting two television advertisements as they were disparaging towards plaintiff’s product, Kwality Walls.

According to plaintiffs Hindustan Unilever Ltd (HUL), the said advertisement disparages Kwality Walls, a rival to Amul. It is a negative campaign asking consumers not to have frozen desserts, instead have Amul.

Although the defendants (Amul) claimed that they do not in any manner, defame, denigrate or slander either frozen desserts or the plaintiff’s products, they laid emphasis on the fact that the manufacturers of frozen desserts continued to describe their product as ice cream in violation of S. 53 of the Food Safety and Standards Act (FSSA) 2006, despite the introduction of Regulation 2.1.7 in 2011 by the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011, separately classifying ice creams and frozen desserts under the larger head: “Dairy-based deserts/ confections”.

The court specified that it is necessary to examine as to when disparagement of a product can be said to have taken place and the entitlement of a manufacturer of a product to sue for disparagement of its product when an entire class of products is disparaged.

Upon examining the law laid down in the aforementioned cases, Justice Kathawalla observed:“Even if there is no direct reference to the product of the plaintiff and only a reference is made to the entire class of products in its generic sense, even in those circumstances, disparagement is possible.”

Two “Weddings” and a Passing Off Claim

Last month, J. Patel delivered an order on an application for an ad-interim injunction in a claim of passing off concerning the title of a forthcoming film. The case was brought by Anil Kapoor Film Co Pvt. Ltd. against Make My Day Entertainment & Anr, it being Suit (L) no. 319 of 2017. The plaintiff’s movie titled “Veere Di Wedding” was to star Sonam Kapoor and others. This film has not been made and is still under production. The defendant’s film is one titled “Veere Ki Wedding” starring Jimmy Shergill among others, which has been completed and is apparently slated for release sometime this month.

In March, 2015, the plaintiff registered his script titled “Veere Di Wedding” with the Film Writers’ Association (FWA). The title of his movie was successfully registered with the Indian Film and Television Producers’ Council (IFTPC) by June, 2015. This registration was also renewed successfully – being initially valid only for a year. IFTPC apparently notified the defendant of the plaintiff’s rights in the title, post which the defendant wrote to IFTPC regarding use of the title “Veere Ki Wedding” around March this year. This was when the plaintiff first received knowledge of the making of such a film, although nothing was done of that till May.

J.Patel’s order begins with admonishing the plaintiff for being unfair to the court and not respecting his denial of circulation of interim applications for the time being. The plaintiff had pleaded urgency and moved under a letters patent leave application, which did not sit well with the judge, as he found there was no real urgency at all.

Moving forward, it was clarified that the application was based on a claim of passing off. This was in view of the Supreme Court decision of Krishika Lulla v. Shyam Vithalrao, which held that there cannot be copyright in a movie title. J. Patel accepted this claim, but also correctly recognized that such a claim can only succeed if the classical trinity of “reputation/goodwill, misrepresentation and damage” is satisfied. The requirement of satisfaction of all these ingredients was outlined as far back as in 1980 in Erven Warnick v. J. Townend(1) , applied in Reckitt & Colman v. Borden(2), and reiterated in notable Indian decisions like Cadila Healthcare v. Cadila Pharmaceuticals and Heinz Italia v. Dabur India, among others.

It is thus clear from J. Patel’s order that it would be difficult for passing off claims to succeed for common place titles, especially those of singular works. The classical trinity would have to be proved – with the bar of reputation being higher for singular works. Alternatively, such titles may either be registered as trademarks under class 41, or may be registered with producers’ associations – although the latter only provides priority of registration. As for the former, trademark registration prescribes a standard of uniqueness that could be fatal for titles that are commonplace.

Bollywood’s ‘Raabta’ with Copyright Infringement

The upcoming hindi film ‘Raabta’ was recently slapped with a copyright infringement suit by the producers of the Telugu film ‘Magadheera. Both films involve lovers who find each other in a second life (reincarnation and all that). Other similarities include parallel visualization of the two different “births” or generational settings – with the previous one being a royal, medieval setting. And both films have a notable antagonist vying for the woman’s affection.

the producers of ‘Magadheera’, have alleged that the “storyline, plot and screenplay” of Raabta has been copied from their film. Soon after, the producers of ‘Raabta’ came out with a public announcement. Through this, they have not only rejected the claims made by Geetha Arts but also emphasized that copyright law protects expression and not ideas, themes and plots.