The Hindi Film Industry has been continuously witnessing, controversies relating to issues of copyright infringement, censorship and film titles disputes etc. and in line with the same, we cannot ignore a recent trend, whereby the party seeking relief, moves to the court for injunction at a very crucial stage i.e. just before the release of a film infringing the alleged IP rights. Off late, the last minute injunction has become a stratagem by the aggrieved party to their advantage and at the same time causing maximum damage to the commercial viability of the said film. Recently before the Bombay High Court, a case was brought by Anil Kapoor Film Co Pvt. Ltd. (hereinafter referred as Plaintiff) against Make My Day Entertainment & Another (hereinafter referred as Defendants) for grant of injunction where the application was based on a claim of passing off a movie title. In the present case, Anil Kapoor Film Co Pvt. Ltd. claimed rights in the title “Veere Di Wedding” a film which is yet to release and is under production and on the other hand, the defendant’s movie which is all set to release with the title “Veere Ki Wedding”. In order to show goodwill, the Plaintiff relied on several newspaper articles evidencing that the Plaintiffs have acquired considerable reputation and goodwill in the title of its film “Veere di Wedding”, an additional affidavit to show how ‘vast amount’ has been spent on the production, however, the said evidence could not impress the Court. The court was of the view that there must be an attempt by the Defendant to deceive or mislead or to pass off his products as that of the Plaintiff and at the same time, it was not necessary that the deception relates to goods or services but even to their source or origin. The court also examined and found it difficult that there can be reputation without their being product and service like in the present case where the Plaintiff’s film is yet to be completed and where reputation urged was in anticipation of the creation of the film. While considering the reliance placed by the Plaintiff on newspaper and news reports, the Court opined that the same was scant evidence in proving reputation in order to succeed in an action for passing off. The Court further held that the public at large cannot be so lightly taken in and can neither be so easily deceived, that they do not know which film to watch. The public cannot be underestimated in their option of choice when there is an overload of information where the same is available on a click of a button making deception more difficult at the same time raising the bar high for establishing passing off.
The judgment discusses that in order to succeed in a passing off action, the Plaintiff must show name, description or get up that the Defendant’s goods or services are associated in public mind with that of the Plaintiff’s. It is important to show that the Defendant is trying and deceiving the public into believing that what they are seeing or watching is of the Plaintiff althoughit is watching something which is of the Defendant itself. The Defendant relied on the KM Multani Vs Paramount Talkies of India Ltd & Others which relates to the question of passing off, a movie titled Virginia relating to two different movies in two different languages. In the said case the two movies were in existence and in process of distribution, whereas in the present case there is no existence of the Plaintiff’s movie yet. The court made it clear that ,“ mere fact that there is another film in the making with the same title but a completely different star cast is not necessarily evidence of it being ‘calculated to deceive’, or of the Defendants ‘passing off’ their film as having been made by the Plaintiff.” The first and foremost necessity would be to prove whether there is reputation, then to see whether there is misrepresentation and then accordingly proceeding on to establish the rest. It should not be the case where plaintiff tries to allege misrepresentation first and then there by try to advancehis arguments to establish reputation. In the present case, the court did not found any substantive evidence provided by the Plaintiffto show that they have reputation in their unfinished film “Veere Di Wedding”.
The court was of opinion that the unique title of a film is not in itself sufficient to establish reputation as in the present case the title of the film itself is a common phrase in one or more languages thereby meaning “my best friend’s wedding”. There is no shortage of films that have exactly the same title but are very different from each other and share nothing in common. There are various films that are in existence having same title but different contents.
In the present case the court found it “exceedingly” difficult that there is any reputation attached to the title alone of a thing which was not in existence thereby no prima facie in passing off was made out.