And This Time santabanta.com is Not Joking!

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.

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