Bombay High Court recently ruled in a dispute concerning rights over the title of the Plaintiff's film Veere Di Wedding which in English is stated to mean "My best friend's wedding" which was alleged to be deceptively similar to the Defendant's film title Veere Ki Wedding. The competing titles do convey the same meaning and the court considered whether the Plaintiff has established its reputation in its title for a movie that is yet to completed. The court concluded that evidence produced was scanty to entitle an interim injunction.
The Plaintiff's movie was yet to be completed and is under production. On the other hand the Defendant film with the title Veere Ki Wedding was scheduled for release in May or June 2017.
The Plaintiff agreed that there is no question of copyright in the title of the movie and he needs to establish a case of passing off. In other words, establish his reputation and goodwill in the title. The plaintiff thus advanced the following contentions:
- The script of the movie was finalized in March 2015 and registered with the Film Writer's Association ("FWA") under the name Veere Di Wedding, which it claims to be exclusive.
- The Plaintiff also secured registration for the title with the Indian Film and Television Producers Council ("IFTPC") in June 2015 and the registration was duly renewed and is subsisting.
- The shooting schedule for the film was finalized from August 2016.
- It relied on several newspapers articles to say that these news reports show the Plaintiff to have "acquired considerable reputation and goodwill' in the title of its film. Thus the title is now firmly ensconced in the public imagination with the Plaintiff's forthcoming cinematic work.
- The Plaintiff also tendered an additional affidavit to show that it has spent 'vast amounts' on this production. Notably, there are amounts of Rs. 5 million, Rs. 6.5 million, Rs. 4.5 million and Rs. 2.5 million paid to artists and directors. Some amounts are also paid to some producers as well as spent on office and administrative expenses, etc.
- That it learned of the Defendant's film with the title Veere Ki Wedding around two months ago i.e., in March 2017 while there was exchange of correspondence between IFTPC and the Defendant regarding the registration of the said title.
The Defendant's counsel on the other hand countered as follows:
- That 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. Thus it seems unlikely that any avid movie goer will mistake one for the other.
- The Plaintiff's argument of deception does not take into account the proliferation of online material that is available on common mobile phones, and that persons going to movies know exactly what they are about. This has made deception far more difficult.
- That the Plaintiff must show that name, description or get up that the Defendant puts about are associated in the public mind and imagination with the goods or services of the Plaintiff.
The leaned single Judge, while holding that there is no prima facie case for passing off and thus no ad-interim reliefs can be granted to the Plaintiff, made the following observations:
- There is "no evidence of the Plaintiff's film even being in existence yet. The 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 reliance on third party news reports saying that the Plaintiff proposes to make such a film "and a desultory statement of expenses, are scant evidence of the kind of reputation one must establish to succeed in passing off".
- It is wholly wrong "to describe this as a quia timet action, which expression relates to an action brought before misrepresentation can be made, not before reputation is established".
- Other than "the newspaper reports annexed - all from June 2016 - there is nothing at all to indicate that the Plaintiff has given its film the kind of publicity or has acquired the sort of indelible reputation that could possibly lead to a prima facie conclusion that the Defendant's adoption of their title was deceitful".
- There is not a suggestion in the plaint that, apart from the title, there is any commonality between the Plaintiff's forthcoming film and that of the Defendant.
- The title being more commonplace, the burden of establishing a reputation might lie heavier; but that burden is never discharged by saying only, as the present Plaintiff does, that it has plans to make a movie with a particular title and others have spoken of it. It is prima facie exceedingly difficult to conceive of reputation attaching to a title alone, of a thing not in existence, divorced entirely from content.
To sum up:
The decision has brought out clearly that bar on establishing reputation and goodwill is much higher in situations where the title of a film, comprising words of common parlance, is at issue and the film is yet to be completed. Interestingly, the judge noted that film with common titles but different contents have co-existed. At the same time remarked if the title is unusual or unique it may help to claim exclusivity.