Why the Bombay High Court trashed the Veere Di Wedding passing off claim

Published on 10 Jun 2017 by Team

The Bombay High Court last month refused to grant an interim injunction in favour of the makers of the upcoming Bollywood film Veere Di Wedding.

The plaintiffs, Anil Kapoor Film Co Pvt Ltd, claimed it had rights to the title of the Sonam and Kareena Kapoor starrer, which is slated for release later this year.

Represented by Senior Advocate Ravi Kadam, who was briefed by Naik Naik & Co, the plaintiff sought an injunction against the defendants, who were going to release a film titled ‘Veerey Ki Wedding’, on the grounds of passing off. Dr. Abhinav Chandrachud, briefed by AS Khan & Associates, appeared for the defendants.

At the outset, Justice GS Patel expressed his displeasure at the plaintiff’s move to seek ad-interim relief through a Letters Patent leave application, this despite the Court having denied circulation (urgent hearing) for interim orders. Pointing to these “most irregular circumstances”, Justice Patel noted,

“Once I had declined to grant circulation, the Plaintiff ought not to have made this application today at all. This is unfair to the other side and it is unfair to the Court. I have allowed Mr Kadam for the Plaintiffs to proceed only because he insists there is great urgency.”

As regards the urgency aspect, the judge found that there was none.

“This is yet another instance where despite at least two months’ prior knowledge, possibly more, a party chooses – in this case, I suspect on legal advice – to wait until the very last minute to approach the Court; this time, on the penultimate day of the term, just before the court closes for the summer vacation.

Typically, this is a time when the court’s dockets are more pressed than usual, and today’s docket is especially crowded with a fixed matter listed for completion and a separate list notified to start at 5:00 pm. The Plaintiff could have moved at any time earlier.”

Coming to the case itself, the plaintiffs had got the title Veere Di Wedding registered by the Indian Film and Television Producers Council (IFTPC) in June 2015, and later got the same renewed. However, in June 2016, IFTPC told the defendants that the title had been registered only for the Punjabi language. Later, it was clarified that the title had no language restrictions.

A blame game ensued between the defendants and IFTPC, and in March this year, the plaintiff came to know about the defendant’s movie title. Once again, Justice Patel pointed out that they had two months to approach the Court, but sought to do so only on the last day before the vacations.

The Court went on to analyse whether there was indeed a basis for granting relief. It stated that the two ingredients for establishing passing off – reputation and misrepresentation/deception – had to be proved.

To highlight the first aspect, Kadam produced various newspaper reports on the film, claiming that the title of the movie was “firmly ensconced in the public imagination” as a consequence. He also submitted invoices for expenses made by the producers of the film.

However, the Court was of the opinion that it was difficult for the plaintiff to claim its movie had reputation, since it had not even been made.

“The Plaintiff’s film is yet to be completed. It may never be completed. Many things in life are uncertain. Film completion is one – the history of cinema is littered with unfinished films. The reputation urged in this case is in anticipation of the creation of the thing to which it supposedly attaches, viz., the Plaintiff’s film.

The reliance on newspapers and news reports saying that the Plaintiff proposes to make such a film is scant evidence of the kind of reputation one must establish to succeed in passing off.”

With respect to the purported deception that the defendants’ movie title may cause in the minds of the public, the Court had this to say:

“A court must not lightly assume that the public is so gullible, so infantile, and quite so easily deceived that it does not know what it wants to see, hear or read. Not to put too fine a point on things, it seems to me hardly likely that any avid movie goer headed for a film starring Ms Sonam Kapoor will dive headlong into a darkened auditorium showing a film with Mr Shergill; or will mistake Mr Shergill’s film for Ms Kapoor’s (let alone he for she)…

The entire edifice of this argument on deception seems to me to be built on some archaic imagining of movie going from the 1950’s or 1960’s. It does not account for the Internet, the proliferation of online material, that all of this is available on common mobile phones, and that persons going to movies know exactly what they are about…”

Towards the end of the order, the Court decided whether uniqueness of a title was enough to establish reputation.

“But the fact that the title is unique is not in itself sufficient to establish reputation, nor is the fact that there has been a previous book or a film with the same name. There is absolutely no shortage of films that have exactly the same title but are very different otherwise and share nothing else in common.”

Justice Patel then shows off his knowledge of movies and gives examples of the below mentioned.

The accused (1998 and 1949); Betrayed (1988 and 1954); Heat (1995 and 1972); Gladiator (1992 and 2000); Invincible (2006 and 2001); Crash (2004 and 1996); Proof (2005 and 1991); The Aviator (2004 and 1985); Heaven Can Wait (1978 and 1943); Notorious (1946 and 2009)

Therefore, the Court denied the plaintiff’s application for ad-interim relief.

“It is, I think, prima facie exceedingly difficult to conceive of reputation attaching to a title alone, of a thing not in existence, divorced entirely from content. This burden is not, prima facie, sufficiently discharged to warrant an ad-interim injunction.”

The Court, however, made it clear that the prima facie observations made in this order would not affect the final outcome of the Motion

News Source - Bar & Bench

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