Author: S Mohan

Bench: Mohan, S. (J)

Act:

Advocacy–Significance of profession–Punishment whether  to be commensurate with the degree and gravity of misconduct. Advocates Act, 1961-Section 38-Appeal-Misappropriation-Proof of–Enhancement of punishment and direction of Supreme Court to refund of amount pending with advocate.

Introduction:

Ethical codes apply to every profession irrespective of the nature of work. Doctors, teachers, corporate employees, every professional is guided by a set of ethical guidelines he/she is expected to adhere to. Professional ethics drive a person’s professional life and success. When it comes to the legal profession, ethical codes are given utmost importance. These apply to everyone starting from an intern to the Supreme Court Chief Justice. It is an advocate’s responsibility that he/she be truthful. The current case deals with misappropriation of amount paid. It is one of the rarest and unfortunate cases wherein the advocate was at fault and used his position to deceive his client who trusted him. The Bar Council and the court interpreted the facts right and based on the merits of the case found the advocate guilty of professional misconduct.

Issues Raised:

Whether the decision of the disciplinary Committee of the Bar Council be set aside ?

Whether there is misappropriation at the end of appellant?

Whether the appellant be punished for professional misconduct?

Facts of the Case:

1.     The respondent in the current case engaged the appellant in an earlier suit in which he was the defendant.

2.     The suit was compromised and the court ordered the respondent to pay Rs. 64,000 out of the total amount lying with the court receiver to the plaintiff.

3.     The court ordered to pay the balance to the respondent and to hand over the suit property over to the respondent by the court receiver.

4.     While the suit was pending, the court receiver inducted a tenant who filed for an interim injunction restraining the court receiver from handing over possession of the property to the respondent.

5.     That suit was continued.

6.     Upon the passing of the compromise decree, the appellant being the counsel for the respondent was requested to withdraw the amount lying with the court receiver and hand over the same to the respondent. A letter of authorisation was issued for the same.

7.     Pursuant to the instructions given in the letter, the appellant withdrew Rs. 50,379 from the court receiver but paid only Rs. 18,000 to the respondent.

8.     The respondent therefore filed a complaint before the Bar Council of India upon which the a notice was issued to the appellant.

9.     The appellant submitted his reply to the notice.

10.  The Disciplinary Committee of the Bar Council of India after hearing his arguments and considering the evidence produced by him as explanation, said that the burden of proof with respect to the total sum being paid to the respondent was on the appellant.  

11.  The committee did not accept the receipts the appellant produced as evidence of payment. He pleaded that the account books were lost which the committee believed was untrue.

12.  The appellant was suspended for two years and was directed to pay a sum of Rs. 500 to the complainant.

13.  He subsequently filed the present appeal against the order of the Disciplinary Committee of Bar Council of India.

Judgement:

The Court in this case pointed out that the order under appeal is unexceptional and found that there was no case for interference. It further stated that the order of two year’s suspension was not commensurate with the charges of misappropriation directing the issue of notice to the appellant.

The court with respect to the decision of the disciplinary committee was of the opinion that the committee had come to a conclusion that the receipts were faulty after proper appreciation of the evidence owing to the fact that the receipt was got up on a blank signed paper. The court recognised the fact that the appellant could not prove the due execution of the receipt. The Court stated that the appellant’s statement of account books had being lost in transit were rightly disbelieved. The Court firmly stated that considering all the circumstances it is a clear case of the misappropriation by the appellant and professional misconduct can be established. 

The court with respect to the appropriate punishment to be given to the appellant, spoke at length about the duties of an advocate and the responsibilities he must be bound by. The Court reiterated how and why the legal profession is considered to be noble.

The court referred to M. Veerabhadra Rao v. Tek Chand, wherein the advocate had committed forgery. It was held as a serious misconduct. This was referred in an attempt to discuss how professional misconduct must be dealt with.

The court referring to  Bar Council Of Maharashtra v. M.V Dabholkar stated that the role of the members of the Bar must be appreciated.

In this regard, the court spoke of the assumptions monopoly licence to practice law is based on. While the first is that lawyer has a socially useful function to perform, the second is that the lawyer is the professional person who must perform that particular function, and third about his/her performance  as a professional lawyer being regulated by themselves and by the profession as a whole formally.  

With respect to the punishment for professional misconduct, the court having regard to the gravity of the misconduct and keeping in view the motto that the punishment must be commensurate with the gravity of the misconduct, the court ordered for suspension of five years.

Besides the punishment to be given to the appellant, the court with respect to justice being served to the respondent, was of the view that the respondent should not be driven to a civil court for recovery of this amount after the appellant was found guilty thereby directing the decree in favour of the respondent for a sum of Rs. 22,379 with interest at 9% per annum from the date of the complaint till the date of payment.

The appeal was dismissed.

Conclusion:

No matter how much courts and their lengthy procedures are criticsed, people still say “I will see you at court”, “Justice prevails”, etc. This is reflective of people’s trust in judiciary. A client engages a lawyer and completely trusts him/her. A layman will not understand legal proceedings and cannot speak while the case is being heard in the court. The entire burden is on the advocate. Considering the amount of trust and hopes in the advocate, it is their obligation to atleast be truthful to the client if not help them win the case.

In the current case, the issue at hand was monetary in nature. When money is involved the last thing an advocate must do is fall prey to temptation and greed. The advocate deceiving the client for money is unfortunate and totally uncalled for. However, the case sends two strong messages. One from the respondent and one from the bar council and court. The respondent was vigilant and rightly identified the fraud and reported it. Often people either ignore the mishap and be happy that some money has reached them or let it go thinking it is a risk to mess with lawyers. The respondent fought for justice and got it delivered. It is often believed that professional relations are strong and a lawyer supports their peer. This was proved wrong in this case. The Disciplinary committee could rightly gazed through the facts and chose justice over supporting their professional peer. The court instead of striking the committee’s report, giving a harsher punishment restored faith in justice. As an advocate, the appellant tried to cover up his mistakes and play around with the loopholes in cases of monetary relief. A suspension was definitely called for. It can be concluded that when he ignored his professional responsibilities, the court used it’s professional duty towards the general public who fight for justice.

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HIGH COURT OF BOMBAY

Date of Judgement: 15 January 2020

Coram: S.J. Kathawalla

Facts of the case:

1.     Marico Limited, the plaintiff was one of the leading players in the Fast Moving Consumer Goods (FMCG) market in India that manufactures and markets inter alia packaged edible oil, edible coconut oil, oats, hair oil, beauty products and other personal care product(s) under its portfolio of various well-known and prestigious brands.

2.     The plaintiff’s most well-known trademarks are PARACHUTE under which it markets inter alia its edible coconut. The plaintiff had undertaken the extensive promotion of its edible coconut oil sold under the brand PARACHUTE in various media.

3.     The defendant was a “YouTuber” / “V-Blogger” who had his channel titled “Bearded Chokra” on the popular website “Youtube”.

4.     On his channel, the defendant who claims to have a Postgraduate degree in Bio-Technology from the Mumbai University produces and uploads videos wherein he reviews products of various manufacturers.

5.     On or about 1st September 2018, the defendant published a video titled “Is Parachute Coconut Oil 100% Pure?”. In this video, the defendant reviewed the plaintiff’s PARACHUTE coconut oil. According to the plaintiff, in or about last week of January 2019, it came across the Impugned video published by the defendant.

6.     It is the plaintiff’s case that in the Impugned Video the defendant makes claims and statements concerning the plaintiff’s PARACHUTE edible coconut Oil, which are false and unsubstantiated.

7.     The plaintiff stated that on the whole, the Impugned Video was disparaging and denigrating in nature.

8.     The plaintiff through its Advocates sent an email dated 28th January 2019 to the defendant whereby the defendant was called upon to cease and desist from publishing or in any manner communicating the Impugned Video to the public, and calling upon him to remove the Impugned Video from social media sites including his YouTube channel.

9.     On 29th January 2019, the defendant replied to the Plaintiff’s advocates defending his video and also proposed to re-make / modify and/or delete portions of the Impugned Video subject to certain conditions stated therein.

10.  On 30th January 2019, the defendant sent another email to the Plaintiff’s advocates stating that he is expecting a response from the plaintiff.

11.  On 30th January 2019, the plaintiff, through its Advocates, replied with a holding email stating that the contents of the defendant’s emails were being considered by the plaintiff and called upon the defendant to remove the Impugned Video in the meantime.

12.  The defendant refused to comply with the aforesaid request of the plaintiff stating that he had a right to voice his opinion.

13.  On 11th February 2019, the plaintiff filed the present suit and on 13th February 2019, the plaintiff made an application for urgent ad-interim reliefs.

14.  The defendant filed his affidavit in reply; the plaintiff filed its affidavit in rejoinder, and the defendant filed a supplementary affidavit in Reply.

15.  Since the pleadings in the matter were complete, by consent of both the sides, the court took up the notice of Motion for final hearing.

16.  The plaintiff inter alia prayed for an injunction against the defendant, restraining him from

·      Publishing or broadcasting or communicating to the public the Impugned Video,

·      Disparaging or denigrating the plaintiff’s PARACHUTE COCONUT OIL product or any other product of the plaintiff or the plaintiff’s business and

·      Infringing the registered trademarks of the plaintiff.

Issues raised:

1.     Whether the defendant made false, malicious or reckless statements

2.     Whether the statements were published recklessly or maliciously / Due diligence exercised by the defendant

3.     Whether special damages were suffered by the plaintiff

Plaintiff’s contentions:

The Learned Senior Advocate for the plaintiff submitted the following:

1.     The defendant’s video was a targeted attack directed against the plaintiff’s product made with an attempt to attract more viewers towards his video.

2.     The Impugned video provided incorrect information and deceived the viewer into believing that the tests conducted substantiated the claim of the defendant that the plaintiff’s product was of inferior quality and/or is inferior to other oils.

3.     The impugned video as a whole was disparaging and denigrating in nature. The Impugned

video maliciously published by the defendant comprises words and visuals in respect of the plaintiffs PARACHUTE COCONUT OIL, which were false and which have not only denigrated the plaintiff’s product but also caused and likely to further cause special damage to the plaintiff.

4.     Since the defendant claims that creation and publication of such videos is his occupation and source of livelihood, the defendant’s review cannot be equated or treated at par with any other review provided by an ordinary consumer since the intention of an ordinary consumer is not to generate viewership or hits and consequently earn revenues from the impact created by the Impugned Video.

5.     The defendant promoted a competing product PURE & SURE organic cold-pressed coconut oil in his impugned Video in substitution for the product of the plaintiff and urged the viewers to stop using the plaintiffs PARACHUTE COCONUT OIL and attempted to promote two other competing products by providing links for purchasing these products from online retailers such as amazon.

6.     The acts of the defendant fall under the category of ‘commercial activities’ and not a general review of the product by an ordinary consumer.

7.     The defendant in his video was spreading a false message concerning the plaintiff’s PARACHUTE COCONUT OIL insinuating inter alia that:

·      The packaging of the plaintiff’s PARACHUTE COCONUT OIL is inferior and that the cap of the bottle of the PARACHUTE COCONUT OIL is flimsy;

·      The fragrance of the plaintiff’s PARACHUTE COCONUT OIL is very strong and it smells similar to a rotten coconut

      From the tests conducted by the defendant, the plaintiff’s PARACHUTE COCONUT OIL

a)      Is inferior to organic cold-pressed oils

b)    Is made from poor quality coconuts or is heated to a high temperature

c)     Has impurities and that the same is seen once the oil is frozen

d)    The antibacterial properties or antifungal properties and nutrients in PARACHUTE COCONUT OIL are less due to the processing it undergoes

Concerning the above-mentioned statements/insinuations made by the defendant in the video, it was submitted that:

a)     It is inconceivable that the defendant who claimed that he promotes PURE & SURE coconut oil since ‘he consumes it himself, presumably on a regular basis and has used only one bottle of the Plaintiff’s PARACHUTE COCONUT OIL was in a position to make a bold statement that the cap often breaks. He submitted that on the contrary, the plaintiff has stated that they have received the INDIA STAR Packaging Award 2017 across 12 categories.

b)    The defendant’s insinuation that the plaintiff’s product was made of rotten coconuts is not an honest or fair opinion and cannot be equated in any manner or form with hyperbole or an exaggerated statement not to be taken literally and the truth is that the aroma of the Parachute Coconut oil is natural and characteristic of Copra.

c)     Since the packaging of the plaintiff’s product did not mention the grade of the coconut used, where they have been extracted from and which coconut it has been extracted from, the defendant was attempting to imply that there is some information sought to be concealed by the plaintiff since the coconuts used were of inferior quality, which is factually incorrect.

d)    The defendant fails to mention the nature of the impurities in the plaintiff’s PARACHUTE COCONUT OIL.

e)     The nutritional values mentioned on the products produced before this court during the hearing indicate that there is no substantial difference but only a minor variance in the nutritional values between the plaintiff’s product and the products recommended by the defendant in his video.

f)     The defendant admitted that the PARACHUTE COCONUT OIL is unrefined and therefore has not undergone any processing but made a contradictory claim that the antibacterial properties or anti-fungal properties and nutrients in PARACHUTE COCONUT OIL are less due to the processing it undergoes.

8.     The defendant should have conducted proper research or relied on lab reports before coming to the conclusion and making the video and should have conducted enquiries with the plaintiff to ascertain the truth/facts before making the false, reckless and disparaging statements in the video since the impression given by the use of forceful, decisive and assertive statements/phrases in the Impugned Video was that the defendant is an expert and has undertaken extensive research on the topic and/or is concluding based on sound and thorough groundwork, research etc.

9.     The defendant’s malice is evinced by the denigrating replies posted by the defendant on the comments to the Impugned Video, such as follows:

“This video was only to bring awareness to the general public of the inferior quality of parachute coconut oil.” “Also the freeze test method was only to show the impurities.”

“I know there are many tricks which companies use to make a fool of the public

and that’s what I am busting.”

10.  The defendant knew fully well that the contents of the Impugned Video constituted the tort of malicious falsehood and slander of goods; that for this reason, the defendant offered to delete certain portions of the video where he sought to make a comparison and also offered to make a completely fresh video after a re-evaluation of a fresh product of the plaintiff.

11.  The defendant conducted FREEZE TEST which is neither a correct test nor a correct comparison and the only test conducted by the defendant to conclude that PARACHUTE COCONUT OIL is inferior to the other oil is that of freezing and no other test whatsoever has been conducted either by the defendant or through an independent testing centre to test the quality of the plaintiff’s PARACHUTE COCONUT OIL.

12.  The defendant has not conducted any tests whatsoever to evaluate the nutritional value of the PARACHUTE COCONUT OIL vis-à-vis virgin coconut oil or even organic cold-pressed coconut (copra) oil to be in a position to infer that the PARACHUTE COCONUT OIL lacks nutritional value.

13.  The defendant had deliberately misled the consumers by inserting sudden inconsequential references to Virgin Coconut Oil and its benefits or the differences between refined oils and unrefined oils in the Impugned Video which have no relation to the alleged tests conducted and the alleged inferior quality of the PARACHUTE COCONUT OIL.

14.  The defendant’s actions satisfy all ingredients to constitute DISPARAGEMENT, SLANDER OF GOODS, AND MALICIOUS FALSEHOOD. He relied upon the Halsbury’s Laws of and the decision of this Court in Hindustan Unilever Limited vs. Gujarat Co-operative Milk Marketing Federation Ltd & Ors.

15.  There is a difference between an action for defamation and action for disparagement, slander of goods, a malicious falsehood which was considered by this Court and it has been held that the defence available in an action for personal defamation would not be available in the case of an action for disparagement.

16.  If the plaintiff demonstrates that at least one customer has been lost or a pleading which demonstrates that the action would lead or has led to such damage would suffice and satisfy the criteria of special damage. Special damage does not mean special in terms of quantum but special in terms of the nature of the damage which is a simpliciter monetary loss that cannot be valued and compensated.

17.  The fact that the loss caused cannot be evaluated in monetary terms itself could constitute “special” damage and that it is impossible to ascertain the nature of the damage caused.

Defendant’s contentions:

The learned Advocate for the defendant submitted the following:

1.     The defendant did not delete adverse comments against his video shows that he acted bona fide to educate his viewers to ensure that his viewers would be able to see his video, read both the positive and negative comments, and decide for themselves whether to believe the defendant or not. This establishes that the defendant’s objective was to educate his viewers.

2.     In this case, the plaintiff used a trick of showing a wet coconut alongside its product to fool consumers into thinking that its product was derived from wet coconut instead of copra.

3.     The statements made by the defendant in his Impugned Video are true and constitute his bona fide opinion.

4.     The defendant’s offer to delete some portions of his video, in his reply to the plaintiff’s cease and desist notice, was a concession / good faith attempt made to finally settle the matter, not an admission of wrongdoing.

5.     A concession made in the course of trying to settle a matter can never be considered to be an admission and the defendant’s email was not an unconditional admission, but only a concession made to settle the dispute.

6.     The products provided in the links below the Impugned Video are organic cold-pressed coconut oil and virgin organic cold-pressed coconut oil and are each other’s competitors/rivals. When a viewer clicks on one of these links and purchases the product, the defendant receives a commission from amazon but not the owners of the competing products.

7.     The defendant has so far received money from 13 brands/companies to promote their products on his channel and in such cases, the defendant mentions in the video itself or the description section to the video, that the video is a paid endorsement.

8.     The defendant has also reviewed two products of the plaintiff, without receiving any money from the plaintiff wherein, in many parts, his review was favourable to the plaintiff.

9.     The plaintiff’s product is not branded or marketed as being “copra oil” which is how much oil is known and the plaintiffs packaging merely uses the generic term “coconut oil” and the bottle shows a coconut with water gushing out.

10.  The plaintiff’s advertisements suggest that its oil is extracted from wet coconuts and therefore it’s comparison with virgin coconut oil / organic cold-pressed coconut oil is justified.

11.  There are several scholarly articles, published in reputed scientific journals, in which clinical trials have revealed that “copra oil” is inferior in quality to ‘virgin coconut oil’ relying upon which advocate for the defendant submitted that the plaintiff’s PARACHUTE COCONUT OIL which is a copra oil is a species of refined coconut oil.

12.  The statements made by the defendant in the Impugned Video are true / constitute bona fide opinion and that the plaintiff’s oil “is of an inferior quality to other organic cold-pressed coconut oils” is correct and in accordance with the scientific literature and the famous and widely referred Dr Fifef’s tests.

13.  The defendant’s statement that the smell of the plaintiff’s product is akin to “a dried or rotten coconut” is hyperbole/exaggeration and not meant to be taken literally.

14.  The plaintiff has not suffered any “special damage” arising out of the impugned video and unlike an ordinary case of defamation, damage to the plaintiff from a false/defamatory statement cannot be presumed in cases involving the tort of disparagement of goods.

15.  The defendant’s video has been “liked” only by 2,500 viewers, which is only 2.31% of those who viewed the video and the plaintiff has not been able to show that 2,500 of its customers have not bought the plaintiff’s product.

16.  The defendant’s video has been “disliked” by 397 viewers which shows that the defendant’s viewers are intelligent and discerning, and they exercise their independent judgment when they view the defendant’s video.

17.  The defendant is neither a trader/manufacturer nor a rival of the plaintiff’s goods and as such, the tort of disparagement of goods/slander of goods does not apply to him.

18.  The tort of disparagement of goods/slander of goods is a specie of libel/defamation and the plea of justification is available to the defendant.

19.  The defendant has appeared before this Court and stated that he seeks to take the plea of justification and the defendant has also mentioned evidence by which he will substantiate his case. This is sufficient to refuse an interlocutory injunction in favour of the plaintiff. The defendant has also established, prima facie, that he is likely to succeed at the trial.

20.  Section 40 of the Food Safety and Standards Act, 2006 does not impose any prior restraints, i.e., it does not require that a person must approach the statutory authority before making any comment about a product and such a requirement would impose an unduly harsh and onerous burden on the freedom of speech and expression.

21.  The plaintiff is not likely to suffer any irreparable harm if the Impugned Video is retained on YouTube. A number of views on the said video have now stagnated; that it is not as though the video is going viral or that millions of viewers are viewing the video every day.

22.  There is no imminent likelihood of any damage to the plaintiff. It would be preferable for the plaintiff to prepare its video countering the video of the defendant, rather than seeking to impose a prior restraint on the defendant through an interim injunction.

Plaintiff’s further contentions:

The Ld. Senior Advocate for the plaintiff stated the following:

1.     The defendant’s intention is not merely to educate his audience or to inform them about the different types of coconut oils or its manufacturing processes or advantages as falsely claimed by the defendant.

2.     The defendant through this impugned Video tried to malign the plaintiff’s PARACHUTE COCONUT OIL which was apparent from the landing screen of the video which states, “IT’S NOT AS GOOD AS YOU THINK!! I’LL PROVE IT!!!!”.  If the defendant intended to create an educative video with the consumer’s interest in mind and to bust the tricks used by companies to fool consumers, the defendant should have approached any independent laboratory to conduct tests and to give verified results to the consumers.

3.     As per the depiction in the impugned video, the impression which is created by the defendant is that the oil used by the defendant for comparison with the PARACHUTE COCONUT OIL and for performing the tests is cold-pressed organic coconut oil which is also made from Copra. The defendant has passed of virgin coconut oil as cold-pressed organic oil in the Impugned Video and poured the same in the glass marked “ORGANIC” to falsely depict and create an impression that organic cold-pressed oil made from copra was clear and to thereafter draw an incorrect conclusion that the PARACHUTE COCONUT OIL which is also made from copra was yellowish and hence of inferior quality.

4.     The defendant’s argument that he believed the Plaintiff’s product was virgin coconut oil made from wet coconuts is fallacious. The device of two coconuts splashing on the packaging of PARACHUTE COCONUT OIL is not misleading or meant to mislead. The said device is not a depiction of a wet coconut with water splashing but is a depiction of oil between the coconuts and it is a registered trademark of the plaintiff and the plaintiff is entitled to use the same.

5.     The link in the description of the impugned video and all other material that has been produced over the course of hearing relates to virgin coconut oil and is irrelevant.

6.     Not a single article produced by the defendant mentions that pure unrefined organic cold-pressed coconut oil or the unrefined organic expeller-pressed oil or normal unrefined expeller-pressed coconut oil should be colour-less or that a colouration suggests impurity or inferior quality. The only document that has been produced which refers to the only test conducted by the defendant viz. “freeze test” is an internet news article. Since it is a newspaper article the document is not admissible.

7.     The said underlying research of Dr Bruce Fife is neither produced nor relied upon. It is not the case of the defendant that Dr Bruce Fife has tested the PARACHUTE COCONUT OIL to be in a position to comment on whether it is inferior to either virgin coconut oil or cold-pressed organic coconut (copra) oil.

8.     The veracity of documents over the internet is the same as newspaper reports which are hearsay in nature and are inadmissible in law even at an ad-interim stage – at least as the sole basis for refusal of interim reliefs. The material produced along with the suit is mostly primary evidence in the form of one on one correspondence or direct evidence. However, the reports and articles of nature referred to above which place reliance on further other material are always hearsay in nature that the ability of the impugned video to create an impact has been misinterpreted by the defendant.

9.     Not all viewers of a video react to the video and the impact of the video has to be judged based on the likes and dislikes that have been generated and the ratio thereof. Over 85% of the viewers who have reacted have been impacted by the video and have been influenced by the false, misleading and malicious statements made by the defendant. He submitted that no further evidence is required at an ad-interim / interim stage of special damage.

10.  The number of hits/views on the impugned video increase daily and the hits have not stagnated as sought to be suggested by the defendant. Every visit to the links and/or broadcast of the same and each day of continuance of the Impugned video has a grossly damaging effect on the plaintiff’s PARACHUTE COCONUT OIL product of the plaintiff and the reputation of the plaintiff and its product.

11.  The defendant is unauthorizedly using the plaintiffs registered mark PARACHUTE in the course of trade in the manner set out above. Such unauthorized use of the Plaintiffs registered mark PARACHUTE in the impugned Video takes unfair advantage of and is contrary to honest practices in industrial or commercial matters. Such unauthorized use of the mark PARACHUTE is detrimental to its distinctive character and is against the reputation of the mark.

12.  The continuation of the impugned video would result in further loss of customers and loss of reputation and goodwill and special damage to the plaintiff.

13.  The defendant promotes other products and also invites offers from his viewers for paid consultation services through the Impugned Videos given by him and therefore, the creation and publication of the impugned video by the defendant is like a commercial speech and is not merely an expression of the defendant’s personal views, opinion or comment. It is incorrect on the part of the defendant to argue that the law of disparagement does not apply to him or that this is not a case of trade libel since he is not a rival trader or competitor.

14.  The defendant has admitted that making and posting videos on the internet i.e. on his YouTube channel is his only source of revenue and that the impugned video was also, therefore, a part of his occupation/calling and created in the course of his trade. The defendant made the impugned video with a solely commercial purpose of generating revenue, which is also the reason why the defendant has created all his other videos.

15.  The impugned video was being monetised even until 12th February 2019 for about two weeks after the plaintiff had issued the defendant a cease and desist notice. Once the video was created and used for a commercial purpose, the amount of revenue generated is not relevant.

Defendant’s rejoinder

The Learned Advocate for the defendant submitted that

1.     To hold that newspaper reports cannot be relied upon at the interim stage because they are hearsay would mean that virtually no document can be relied upon unless the author of the document is the deponent who has verified the pleadings.

2.     At the interlocutory stage, the court must confine itself to the material which has been brought on record, without examining whether or not the same is proven.

3.     To determine whether or not there is “malice” in a case it must be ascertained whether the defendant made the statement knowing that it is false or with reckless disregard as to whether it is true or false.

4.     The defendant was not actuated by malice since he referred inter alia to the test prescribed by the reputed Dr Bruce Fife in evaluating the product of the plaintiff.

JUDGEMENT:

The court’s reasoning and findings:

The court stated that the defendant being a ‘social media influencer’ bears a higher burden to ensure there is a degree of truthfulness in his statements and added that a social media influencer cannot deliver statements with the same impunity available to an ordinary person.

WHETHER THE DEFENDANT’S STATEMENTS ARE FALSE?

A perusal of the video shows that except the colour of the plaintiff’s oil in the liquid and frozen forms, the defendant has not mentioned or analysed any other details of the plaintiff’s product. Conversely, the defendant has omitted details of the products used by him to compare with the plaintiff’s product. Nutritional value of Virgin Coconut oil and plaintiff’s products are almost identical. The defendant has not conducted any independent tests to prove that there is a significant variance in the nutritional values of the products. The defendant did have the option of having the plaintiff’s product analysed under Food Safety Standards Act, 2006. This would have shown the bona-fides of the defendant in giving the correct and true information about the product. Falsehood on the part of the defendant is also evident from the fact that the only test conducted by the defendant to conclude that the plaintiff’s product is of inferior quality is ‘Freeze Test’. The plaintiff’s product is an Unrefined Expeller pressed Coconut Oil and not Virgin Coconut Oil. In the video, the defendant uses and shows the words ‘organic coconut oil’ for the other oil used by the defendant. However, the defendant compares ‘virgin coconut oil’ with the plaintiff’s product. If the two oils used by the defendant for conducting the ‘freeze test’ did not belong to the same category i.e. ‘organic coconut oil’, the parameters of colour and particulate matter used by the defendant and the result based thereon would not only be inaccurate but also erroneous. The defendant has purposely and knowingly misrepresented to the viewers that he was comparing the plaintiff’s product with ‘organic coconut oil’ when in reality he was comparing it with ‘virgin coconut oil’.

WHETHER THE DEFENDANT’S STATEMENTS WERE MALICIOUS OR RECKLESS?

In the impugned Video, the defendant has made use of forceful statements and thus has portrayed himself as an expert who has undertaken extensive research. The literature relied upon by the defendant pertains to gauging the quality of ‘Virgin Coconut Oil’ and thus inapplicable to present case. The Article does not demonstrate as to how the discolouration in ‘Coconut Oil’ or a strong smell in ‘Coconut Oil’ is a sign of inferiority. The article does not refer to the colour of unrefined oils made from copra or that any inference is to be drawn in respect of colours of unrefined Coconut Oil. In the context of oils made from copra, the article only mentions that the same may contain mould (fungus) but the same is not harmful in any nature or form. Thus, the article in no manner or form lends credence to the findings made by the defendant. The defendant had no reason to believe that the statements he made were true since there is material concerning the plaintiff’s product to demonstrate that such belief was possible.  And thus the defendant’s statements have been made with recklessness and without caring whether they were true or false.

WHETHER ANY SPECIAL DAMAGES WERE CAUSED TO PLAINTIFFS?

The plaintiff has suffered special damages in the present matter as the Defendant’s video assumable has been liked by two thousand five hundred (2500) individuals and thus the impact of the video on the plaintiff’s reputation and damage caused to it cannot be underestimated.

The defendant has afforded no explanation for using the term ‘rotten coconuts’. Later in his video, the defendant has once again insinuated that the plaintiff’s product might be made from poor quality coconuts. In an action for disparagement/malicious falsehood/slander of goods, it is irrelevant whether the defendant is a trader or not so long as the necessary ingredients are satisfied.

Fundamental rights cannot be abused by any individual by maligning or disparaging the product of others.

The Court accordingly directed the defendant to take down the video and remove it from YouTube and any other platform in any medium whatsoever.

TEMPORARY INJUNCTION WAS GRANTED AGAINST THE DEFENDANT.

COMMENT:

Social media is the perfect platform to misuse the fundamental right to speech and expression guaranteed to every citizen of this country. While one uses this right as a defence to derogatory statements made, they often forget that right to dignity is also a fundamental right which is at stake because of the reckless statements and baseless accusations they make. Social media in general these days has given people the opportunity to say whatever they want without having the fear of being punished. There are so many websites making numerous statements starting from a water bottle’s material to theory of mars having water content irrespective of checking the authenticity. With intriguing thumbnails to such videos, people attract more and more likes which help them in making easy money. While doing this, people often forget or probably choose to ignore that they might cause harm to someone. With the concept of “influencers” on rise, everybody with a phone has an opinion which he/she thinks would be an ultimatum if shared. In the present case, the person posted a video about the quality of a product. Not just him, anyone and everyone has a right to do so. But only after making sure that their accusations if any are backed by strong theories and evidence. In the present case, he not only used wrong tests but was himself confused between two completely different products. The biggest problem with the video is him adding his qualifications which is one of the best ways to make the viewers believe in the statements and accusations made.

The judgement was in favour of the defendants and it rightly struck down the irrelevant and highly irresponsible statements made by the defendants. I, however, feel this was not it. The defendant should have been asked to pay compensation to teach a lesson to people who intentionally or unintentionally spread false statements and fake theories. However, the plaintiff had not asked for compensation but asked for the video to be taken down. This was ordered by the court and justice was given in favour of the plaintiff. The only addition the court could have made was to make him record another video stating that the theory he had put forth was not true. The defendant in his contentions had raised this point saying that the plaintiff may make a counter video justifying their facts. This should have been the defendant’s task to do as he was solely responsible for the chaos created and there is every possibility that viewers believed in his theory and made videos professing the same. The court could have ordered for the judgement to be widely publicised. 

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M/S. Super Cassettes Industries Private Limited and Ors vs Nandi Chinni Kumar and Ors 

Bench: Honourable M.S.Ramachandra Rao, Honourable T.Amarnath Goud

Court: High Court of Telangana 

Civil Miscellaneous Appeal Nos.355, 356, 357 and 358 of 2020

CMA.No.355 and 356 of 2020

Date of Judgment:19 October 2020

Act: Copyright Act, 1957

Facts of the case: The plaintiff, a music record label and film production company filed a suit against a former gangster turned football player. The defendant no.1 gave film rights of his story to the plaintiff who registered the film script with the title ‘Slum Soccer’ with the Telangana Cinema Writers’ Association. However, soon after registering the film script for Slum Soccer, the plaintiff read about a film titled ‘Jhund’, which was based on the life story of the defendant no.2 who was defendant no1’s coach. Although the film Jhund was based on the life story of the defendant no.2, the story of the film included the story of the defendant no.1. The plaintiff then informed defendant nos. 1to 12 about the previous agreement and warned them that they would be liable for copyright infringement. The plaintiff filed a suit seeking a perpetual injunction prohibiting defendant nos. 3 to 12 from exhibiting or broadcasting the movie Jhund in all the theatres in India and abroad. In response to the suit, the defendants stated that no case had been made out by the plaintiff for grant of injunction against them and other defendants from proceeding with the release of the film titled ‘Jhund’. Further, defendants 3, 5, 6 and 7 also contended that it is possible to make a movie only on the coach, the 2nd defendant, without having the character of the 1st defendant, the alleged Don turned Footballer who captained the Indian Slum Soccer Team in the Slum Soccer World Cup. 

Judgement: The court observed from the teaser of the film ‘Jhund’ that there are distinct similarities in the plot, depiction and the life and story of the protagonist of the film as with the registered script of ‘Slum Soccer’ of the plaintiff, and that the defendants have not specifically denied any of these aforementioned allegations of the plaintiff with regard to similarities between the film scripts. The court held that there was a strong prima facie case of infringement against the defendants and opined that an  interim injunction should be granted in favour of the plaintiff.

Disney Enterprises, Inc. and Ors. vs. Kimcartoon. to and Ors.

Coram: Honourable Mr Justice Rajiv Shakdher

Court: High Court of Delhi 

CS(COMM) 275/2020 & I.A. No.6089/2020

Date of Judgement: 27/05/2020

Act: Copyright Act, 1957

Facts of the case: The plaintiffs in this matter were companies incorporated in the United States of America involved in the business of creation, production and distribution of motion pictures and cinematograph films. The defendants in this lawsuit included several rogue websites that had provided users with free access to pirated content. The Department of Telecommunications (DoT) and the Ministry of Electronics and Information Technology (MEITY) were also included as co-defendants by the plaintiffs, along with several ISPs (Internet Service Providers). The Plaintiffs filed a law suit against the defendants for streaming original and copyrighted content created by the Plaintiffs, without acquiring any prior authorization from the Plaintiffs. After reviewing the list of the infringing websites submitted by the Plaintiffs and the content made available on those websites, the court opined that the Defendants were infringing on the plaintiffs’ copyrights.

Judgement: The court restrained the Defendants from hosting, streaming, reproducing, distributing, making available to the public and/or communicating to the public, or facilitating the same on their websites through the internet in any manner whatsoever, any cinematograph work, content, program or show in which the Plaintiffs owned copyrights. Further, the court granted an interim injunction in favour of the Plaintiffs to ensure that the original content created by the Plaintiffs was protected, and directed the Plaintiffs to file the necessary applications before the court in case of any further infringement by these websites. The court ordered the Department of Telecommunications (DoT) and the Ministry of Electronics and Information Technology (MEITY) to issue necessary directions/notifications to various ISPs in general to block access to the defendants’ websites.

Vinay Vats vs. Fox Star Studios India Pvt. Ltd. and Ors

Coram: Honourable Mr Justice c. Hari Shankar

Court: High Court of Delhi 

I.A. 6351/2020 in CS(COMM)

Date of Judgement: 29 January 2020

Act: Copyright Act, 1957

Facts of the case: The plaintiff, a writer filed a law suit against a production house claiming to be the original scriptwriter and owner of the copyright of the script of the film titled ‘Tukkaa Fitt’, and alleged that the film ‘Lootcase’ produced by the Defendant had the same story as the film Tukkaa Fitt produced by M/s. AAP Entertainment Limited. Though the production of the film was completed in November 2012, the film got delayed as one of the producers died. The film Lootcase was set to release on 31st July 2020. However, the Plaintiff chose to file a lawsuit for the grant of an interim injunction mere days before the release of the film, despite the film’s trailer launched almost a year before the release date. The Defendants stated that the film’s storyline was a very common one, which had been previously used in several films. Further, the Defendants stated that according to the documents submitted by the Plaintiff, the producers of the film Tukkaa Fitt had paid a certain sum of money to the Plaintiff to purchase the script of the film and all the rights subsisting therein. Due to this, the extent of the Plaintiff’s rights over the film’s script needed to be clarified. 

Judgement: The court observed that copyright can only be granted for the expression of an idea and not for the idea itself, and that an idea can be expressed in several forms. According to the court, the most reliable way to determine whether two films were the same in terms of the execution was to see the audience’s reaction to both the films. If the audience found any similarities between the films, then the next step was to ascertain the extent of such similarity. The court opined that the balance of convenience lay in favour of the Defendant. The court was not convinced with the Plaintiff’s claim of becoming aware of Lootcase’s release only recently, since the media had been covering the film for a year before the release date. Further, the court stated that by filing a lawsuit only a few days before the film’s release, the Plaintiff tried to compel the court to expedite the proceedings to get an interim injunction to halt the film’s release. The court, therefore, decided in favour of the Defendant and dismissed the Plaintiff’s plea for the grant of an interim injunction.

M/s. Indian Record Manufacturing Co. Ltd. vs. Agi Music Sdn Bhd, Illaiyaraja and M/s.Unisys Info Solutions Private Ltd.

Coram: Honourable Dr Justice G. Jayachandran

Court: High Court of Madras 

C.S.No.296 of 2016 & O.A.No.338 of 2010

Date of Judgement: 13/02/2020

Act: Copyright Act, 1957

Facts of the case: The plaintiff in this matter was a renowned music company engaged in the production, distribution and sale of music albums in various forms. Defendant no.2 was a famous music composer, who, over the years, had composed music for several South Indian films. Since this suit was contested solely by Defendant no.2, Defendants no.1 and 3 remained ex-parte. The subject matter of this dispute was the music that Defendant no.2 had composed for many films produced by the Plaintiff, by virtue of which Defendant no.2 claimed to be the author these musical compositions, and was in the process of selling the copyrights to Defendant no.1. The Plaintiff was also made aware of the same, following which it filed a copyright infringement suit against Defendant no.2., claiming that it had acquired the copyright and other rights subsisting in the musical compositions from the respective producers of the films, as they were the first owners of such copyright. The court accepted the Plaintiff’s copyright ownership claims in the musical compositions and stated that, since the producers of the film had commissioned the musical works composed by Defendant no.2, the producers were the first and rightful owners of such compositions. The court emphasized the definition of the term ‘cinematograph film’, as defined in the Copyright Act, and stated that it is the producer who puts together several elements to make a complete film. Therefore, only a producer was legally vested with the authority to assign to third parties, the individual rights in each of these separate elements.

Judgement: The court observed that Defendant no.2 was unable to furnish the necessary evidence to support the claims of authorship and subsequent ownership over the musical compositions. The Plaintiff on the other hand was able to satisfy the court by submitting the agreements between the plaintiff and the respective producers to substantiate the claims of ownership of copyright made by the Plaintiff. As a result of this, the order was decided in favour of the plaintiff, and the claims of Defendant no.2 were dismissed.

Star India Private Limited vs Union Of India 

Coram: Honourable Justice S. Muralidhar

Court: High Court of Delhi 

W. P. (C) 879/2010

Date of Judgement: 30 September 2011

Act: Copyright Act, 1957

Facts of the case: This suit dealt with the issue of copyright infringement by various streaming websites that continue to provide access to illegal content. In this present matter, the Plaintiff, which was in the business of producing and distributing films, filed a copyright infringement suit against multiple defendants, who ran different streaming websites, for illegally streaming the plaintiff’s film ‘Mission Mangal’. The Plaintiff also included as defendants in the suit, those departments of the Government of India, which issue notifications concerning blocking of the impugned websites. Before the release of the Plaintiff’s film ‘Mission Mangal’, the Plaintiff had conducted a private investigation into the Defendants’ websites and submitted the findings of these investigations as evidence before the court. The Plaintiff had confiscated infringing materials, including content which was made available on the Defendants’ websites for downloadingand viewing, without the required authorization from the plaintiff, thereby making such content infringing. The evidence presented to the court contained screenshots of all the Defendants’ websites that showed the Plaintiff’s film being made available on the defendants’ websites for downloading and streaming, before the official release date of the film. The Plaintiff also identified those internet service providers (ISPs), who were providing services to the Defendants’ websites.

Judgement: The Court ordered the internet service providers to block access to the Defendants’ websites and also ordered the suspension of the Defendants’ domain names by the corresponding authority. Further, the court directed the Department of Telecommunications (DoT) and the Ministry of Electronics and Information Technology (MeitY) to issue a notification to any website that the Plaintiff notified to be illegally transmitting or broadcasting the cinematograph film ‘Mission Mangal’ in any manner. Since the court did not receive any response from the majority of the Defendants to its notices, the order was decided in favour of the Plaintiff, granting the injunction along with damages deemed appropriate by the court.

Giant Rocket Media And Entertainment Pvt. Ltd vs Ms Priyanka Ghatak And Ors

Coram: Honourable Mr Justice Rajiv Sahai Endlaw

Court: High Court of Delhi 

IA No.18527/2019 (of plaintiff u/O XXXIX R-1&2 CPC) & IA No.82/2020 (of D-1&2 u/O XXXIX R-4 CPC)

Date of judgement: 7th January 2020.

Act: Copyright Act, 1957

Facts of the case: This case involved three defendants, wherein, Defendant no.1 was a scriptwriter, Defendant no.2 was a production house and Defendant no.3, was a retired Joint Commissioner, Central Bureau of Investigation (CBI) and the author of the book “CBI Insider Speaks: Birlas to Sheila Dikshit”, from which, chapter no.7 was to be adopted by the Plaintiff into a web-series. The Plaintiff claimed that Defendant no.2 along with help of Defendants no. 1 and 3, had infringed upon the Plaintiff’s idea to adapt the aforementioned chapter no.7 into a web-series, for which the Plaintiff had previously sought the rights from Defendant no.3. Chapter no.7 from the book was based on the true story of the murder of Syed Modi, who was an eight-time national badminton champion. The court stated that the primary issue, in this case, was whether the chapter itself, as written by Defendant no.3, fulfilled the originality of expression requirement of the Copyright Act. In the court’s opinion, since the story covered in chapter no.7 was a true story, it was already part of the public domain due to which it may not have qualified as copyrightable work.

Judgement: The court, in this case, held that, since the story mentioned in chapter no.7 was not fictional, and was merely the narration of the crime and its prosecution, the Plaintiff did not have sufficient grounds to claim exclusive rights over the contents of chapter no.7 of the book written by Defendant no.3. Each of the scripts belonging to the Plaintiff and Defendant no.2, respectively, narrated their versions of this true crime story. In light of the aforementioned facts, the court concluded that, while the Plaintiff did not have a prima facie case for interim relief, Defendants no. 1 and 2 also did not act fairly. In addition to this, the evidence provided was insufficient to show that the balance of convenience lay with the Plaintiff. As a result of this, the court dismissed the Plaintiff’s appeal for an injunction against the web-series released by Defendant no.2 and vacated the ex-parte ad-interim order.

Sajeev Pillai vs Venu Kunnapalli

Corum: Honourable Mrs Justice Shircy V.

Court: High Court of Kerala 

FAO. no.191 of 2019 against the order in I.A. no. 6058 of 2019 in OS 9/2019 of II

Date of Judgement: 11 December 2019

Act: Copyright Act, 1957

Facts of the case: The appellant Sajeev Pillai, a film director and a scriptwriter, claimed to have researched the history of the grand festival Mamankam and prepared a script for a movie based on the same epic. He met Venu Kunnapalli and signed an MoU with Kavya Film Company which was associated with Kunnapalli. Sajeev was initially appointed as the director but then his service was terminated and was replaced by someone else. The shooting of the movie was thereafter completed which Sajeev alleged was done by mutilating, distorting and modifying his script. Sajeev in light of that filed a suit seeking various reliefs. An interim injunction application was also filed to restrain the respondents from releasing, publishing, distributing and exploiting the film and issuing pre-release publicity without providing adequate authorship credits to Pillai as per film industry standards.

Judgement: The Kerala High Court in the present case, referred to the relevant sections of the Copyright Act, 1957. Section 57 of the Copyright Act,1957 states the Author’s special right. The High Court in its judgement stated that “What is enshrined in Section 57(1) (a) of the Copy Right Act is that even if the copyright has been assigned, the author of a work shall have the special right to claim the authorship of the work. Section 57 (1) (b) consists of two segments. The first part would entitle the author to restrain the opposite party from making any distortion, mutilation or modification of any other action concerning the said work if it would be prejudicial to his honour or reputation. The second part says that the author is entitled to claim damages in respect of any distortion, mutilation or other modifications in the said work or any other action, concerning the copyrighted work which would be prejudicial to his honour or reputation.” The law is, therefore, clear that even after the assignment the author has the legal right to protect his intellectual property.

The Court refrained from staying the release of the movie.However, it granted relief to the aggrieved script writer by directing that nobody’s name will be exhibited as the script writer or as a writer of the screenplay of the movie ‘Mamankam’ anywhere or in the advertisements till the disposal of the suit by the Trial Court.

Raj Rewal vs Union Of India & Ors

Coram: Honourable Mr Justice Rajiv Sahai Endlaw

Court: High Court of Delhi 

CS(COMM) 3/2018, IA No.90/2018 (u/O XXXIX R-1&2 CPC) & IA No.92/2018 (u/s 80(2) CPC)

Date of judgement: 28 May 2019

Act: Copyright Act, 1957

Facts of the case: The present case talks about one Mr Raj Rewal who designed and Mr Mahendra Raj who was the structural designer of the Hall of Nations building. The said building was hailed as an icon of modernist Indian architecture and was erected in the Pragati Maidan grounds in New Delhi. The ITPO in 2016, proposed to demolish the Hall of Nations complex to build an ‘Integrated Exhibition cum Convention Centre’. Despite several attempts made by the Plaintiff to protect the building from demolition, it resulted in what ITPO desired. Post demolition of the building the Plaintiff instituted a suit against the actions of ITPO by claiming that the actions of demolition had derogated the Plaintiff’s special rights under Section 57.

Judgement: The court observed that the plaintiff, in this case, cannot be allowed to prevent the demolition of the building by the defendant as it would in turn amount to a restriction of the defendant’s right to practice their control over their property and land which is provided to them under Article 300A which is a constitutional right that prevails over the statutory rights of the plaintiff which they claim to exist under Section 57 of Copyright Act, 1957. The court further states that the author’s right under Section 57 to prohibit ‘distortion, mutilation or modification’ of his work does not permit an author to prevent the destruction of their work since “that what cannot be viewed, seen, heard or felt, cannot be imperfect and cannot affect the honour or reputation of the author.” Therefore, the extent to which the right vested in the architect extents to is to prevent the building owner to refrain from making changes in the design made by the architect and passing it off as if the design was made by the architect. The court reasoned that the ‘reconstruction’ envisaged under Section 52(1)(x) could only take place if the building had already been demolished. The court stated that Section 57 could not reasonably contemplate the right to object to the demolition of a building. In conclusion, the court dismissed the suit due to lack of cause of action against the demolition of the Hall of Nations.

Yash Raj Films Pvt Ltd vs Sri Sai Ganesh Productions & Ors

Coram: Honourable Mr Justice Manmohan

Court: High Court of Delhi 

CS(COMM) 1329/2016

Date of Judgement: 08 July 2019 

Act: Copyright Act, 1957

Facts of the case: Yash Raj Films (YRF), a renowned production house and the plaintiff in this matter, was the producer of the Bollywood film Band Baja Baarat which was released on December 10, 2010 in India and other countries. YRF proclaimed through a public notice in May 2011 that it had not sold the copyrights of the film to any third party and was the sole owner of the same. In December 2011, the Plaintiff came to know that Sri Sai Ganesh Productions, one of the defendants in this case, intended to remake the film in Telugu. The plaintiff sent two cease and desist notices to the defendants, one in January 2012 and the other in April 2012 but received no response. The plaintiff issued a third notice when the defendants released a trailer. The defendants ignored the notice and released the film titled Jabardasth in February 2013. The defendants had also sold their rights to a Tamil production house for its remake, which was to be released in April 2013. The plaintiff filed a copyright infringement suit against Sri Sai Ganesh Productions, the director and the distributor of the Telugu film (collectively referred as the ‘defendants’) for blatantly copying the plot, theme and character-sketch of their movie.

Judgement: The court held that copyright exists in the ‘cinematographic film’ independent from other underlying works that come together to constitute it and that there is a requirement of originality to exist in ‘cinematographic films’ which can be read into from Section 13(1)(b) of the Copyright Act, 1957 through Sections 13(3)(a) and 2(d) of the said Act even though it has not been explicitly mentioned.  The court stated that the expression ‘to make a copy of the film’ provided in Section 14(d)(i) of the said Act does not simply mean creating a physical copy of the film by process of duplication. In this case, the court found that the defendants had blatantly copied the fundamental, essential and distinctive features of the plaintiff’s film. Thus, the court decreed the suit in favour of the plaintiff and against the defendants.

Tips Industries Ltd vs Wynk Ltd. And Anr

Bench: Honourable S.J. Kathawalla

Court: High Court of Bombay 

Ordinary Original civil jurisdiction in its commercial division

Notice of motion (l) no. 197 of 2018 in

Commercial IP suit (l) no. 113 of 2018 and

Notice of motion (l) no. 198 of 2018 in

Commercial IP suit (l) no. 114 of 2018

Date of judgement: 7 May 2019

Act: Copyright Act, 1957.

Facts of the case: Tips Industries Ltd (Plaintiff) was an Indian music label that exercised copyright over a significant music repository. In 2016, it granted Wynk Music Ltd (Defendant) license to access this music repository. After the expiry of the license both the parties attempted to renegotiate the licensing conditions but failed to do so following which Wynk took refuge by invoking Section 31D of the Copyright Act. Tips challenged Wynk’s invocation of Section 31D and prosecuted Wynkaccording to Section 14(1)(e) for breach of their exclusive rights of sound recording.

Judgement: The court in this case found Wynk guilty of direct infringement on two grounds. The first was to offer the copyrighted work under section 14(1) (e) (ii) which allowed the users to download and listen to the plaintiff’s work offline. The second was under section 14(1) (e) (iii) for communicating the plaintiff’s works to the users via their streaming service. The Court found Section 31D to be an exception to copyright which ought to be strictly interpreted. The court opined that statutory licensing was intended to cover only radio and television broadcasting but not internet broadcasting, as per the statutory scheme of 31D and the rules accompanying it. The court said that, despite the global existence of internet streaming services,when the Section was inserted through an Amendment Act of 2012, the legislation even though being aware of it omitted to include such services from the ambit of Section 31D. The court held that the plaintiff was entitled to an interim injunction, having regard to the reality that they had made a prima facie case, would suffer irreparable harm in the way of lost revenue.

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Fashion: 

Fashion can broadly be defined as a prevailing style during a particular time. The editorial policy of Fashion Theory defined fashion as a cultural construction of the embodied identity.

Nowhere is the definition confined to clothes and accessories. It could be anything. Why then do people immediately think of clothes and accessories when it comes to fashion? The first time most people heard of this word during the 90s was in our televisions as FTV. As kids, everyone had a fascination as to what this immensely intriguing concept of people walking on the ramp would be. After all these years fashion is still by some connected with fashion shows and fashionable clothes.  

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A very significant component of the fashion industry is innovation. Although innovation abounds, helping brands reach locations, counterfeit fashion items, on the other hand, pose a challenge to the fashion industry. In particular, the fashion industry is afflicted by many scandals, such as counterfeiting or removing designs from common works and placing them in some other product, causing the rights of the original rightful owners to be violated. 

FASHION INDUSTRY AND INTELLECTUAL PROPERTY RIGHTS

Intellectual property rights can in simple words be defined as rights that protect a product which is the outcome of a person’s intellect. Hence, designs that are created by fashion designers are their intellectual creations and the law seeks to protect such creations. Intellectual property rights in India seek to protect the fashion industry.

Current Scenario: 

Laws governing the fashion industry:

Copyrights act is a protection given to the drawings on a garment that are not confined to the shape or design of the garment. The tiniest of the details are subject to counterfeits. For instance, woodland shoes have certain intricate details that are quite different from the fake products that look the same. Eventually, when people learned of this, every small thing was copied. Levis jeans having a certain number of stitches or a branded watch having a specific number of stones inside the dial are all such details that are now included under the shelter of copyrights. 

The design act as the name suggests is about the design or shape of the garment concerning its fabric and unique tailoring pattern. The first and the most famous instance when the copyrights issue came into light was when a designer named Rohit Bal got copyrights over his entire clothing collection. Every designer today has copyrights over his/her designs.

Every designer be it famous or infamous, global or local would have the same apprehension about the continuance of his exclusivity.

In Ritika Private Limited v. Biba Apparels Private Limted[2], the designer of a boutique filed a suit against people who tried to prevent their printing, publishing, selling, and offering of prints for which the plaintiff was the owner. This was a very important case that detangled the complicated web of copyrights act and designs act wherein the court has given a clear explanation as to how both the acts are different from each other. It was held in the case that the copyrights act covered only the original expression of what can be called artistic work and can only protect the designer from commercial exploitation of their work. On the other hand, the designs act included protection from the industrial application of their work. 

The fashion industry concerning design and copyrights has numerous laws. Yet these regulations have failed in combatting challenges faced by fashion designers. There is hence a need for definite laws in the fashion industry. The existing laws only work towards preserving the exclusivity of fashion apparel. As mentioned earlier, the scope of fashion industry goes further. The following changes can help in making the fashion industry a better and safer place for both the buyer and the seller.

1. Amending the laws in a way that the purchaser is liable for the counterfeits. Often it is seen that people would knowingly purchase smuggled clothes to save money. As long as the buyer buys smuggled or copied goods for a lesser value, people will keep coming up with new ways to break the laws to make easy money.

2. The laws that govern Intellectual Property Rights seek to protect the original products. But seeking and doing are two different things. The problem is, the laws seek to protect originality but are not stringent enough for people to think twice before committing the offence of lifting someone else’s designs. Through this, counterfeiting may be limited if not prevented.

3. The most important issue in the entire realm of fashion laws is the lack of awareness. The designers must be informed and sensitized about the need to protect their property in a way that can shield their exclusivity from any kind of further challenges. 

4. The second most important issue is to create awareness among the general public. Public or consumers must be sensitized about identifying fake goods and the repercussions of encouraging counterfeit goods.

Fashion. Is fashion about the design? Just about the design? Well, No. It isn’t about the design and the laws that regulate the counterfeiting of designs. The fashion industry is more than just the originality of how a piece of cloth looks like. It is undeniably the most challenging factor in the fashion industry. The only issue one thinks of when there is a question regarding the need for laws in the fashion industry is ‘THE DESIGN’.

So what else is the fashion industry? Let’s breakdown the design process. Design is something a fashion designer comes up with. The idea is put into the process. This process is manufacturing. Once the manufacturing is done, the products go into the market. One simply does not make garments and sells them in shops. There is an organized process involved in this. This is fashion merchandising. Most people confuse fashion merchandising with fashion design. What a designer makes is the design and how they sell it is merchandising. This is the simplest way to put it. The question now is why do we need laws in the merchandising industry. This is the most neglected area in the fashion industry. We often hear of things like factory sale hence 20% off, first copy 30% off. This is where the merchandising part is reflected. 

Fashion merchandising refers to the strategic analysis, marketing, management, and distribution of fashion products to maximize profits. A fashion merchandiser provides valuable input on the types of fabrics used to produce a piece of clothing. It helps to turn the vision of a designer into reality by providing a clear historical and socio-cultural understanding of the fabrics. By applying the knowledge of fabric and clothing construction, a fashion merchandiser takes the piece of a designer and explores the best way to produce the object, taking into account items such as price and target market at the same time. When a merchandiser purchases fashion pieces to be presented in a shop, buying becomes part of fashion merchandising. If a fashion merchandiser works for the manufacturer, it is a number one priority position to sell the designer’s goods to stores that may want to purchase large quantities. Not only is the fashion merchandiser needed to have a creative mind and good visual merchandising abilities, the production abilities must also be sharp. By using fashion shows where creations and visual effects are amplified to catch the interest of prospective customers, fashion merchandising promotes a designer’s pieces. Besides, fashion merchandisers search out the target market for clothes for a designer, such as clothing stores for girls, department stores or discount retailers. 

Further categorization in fashion merchandising[4]:

1.Product merchandising: Promotional activities that are used to sell a product. Product merchandising could either be in-store or online products.

2.Visual Merchandising: All the display techniques used to highlight the appearance and benefits of the products and services being sold.

3.Retail Merchandising: Promotional and marketing activities that in some way contribute to selling products to customers in a physical retail store.

4. Digital Merchandising: All the promotional activities used to sell a particular product online. 5.  Omnichannel Merchandising: Creating a unified customer experience across all possible touchpoints of the customer journey. Omnichannel merchandising involves creating a seamless customer experience—even if the customer moves from one to the other.

Need for definite laws in the fashion and merchandising industry

As mentioned earlier, this is the most ignored sphere in the fashion industry. 

The biggest challenge is the non-applicability of Intellectual Property Rights to the whole of marketing and merchandising. While there are advertising laws and various cyber laws when it comes to e-commerce, there are no well-defined laws that can govern the merchandising process. When it comes to design there are two parties but when it comes to merchandising there is an additional party if the person who is supplying is not the one who is selling. The complexity in the process makes it challenging for regulating the industry.

Quite often we see people selling clothes on the footpaths. Would these come under counterfeiting or merchandising? This comes under the purview of merchandising. Selling clothes in a particular place with the rating board involves strategy and planning. For instance, let’s talk about the famous Sarojini market in New Delhi. What goes on there is not exactly counterfeiting but that is fashion merchandising. They have strategies for selling goods at a cheaper price using their tactics. Can we book them under laws that govern IPR? We certainly cannot. That is their marketing strategy. They sell shoes that look like a puma with the name poma. They have not violated the copyrights act but they have caused a certain amount of loss to the puma manufacturers by cashing their fame. All this is fashion merchandising. The real question is, should we completely curtail such strategies? 

Let’s look at it this way. I would want to buy shoes that look like Adidas but I cannot afford to buy them. I go to the market looking for similar designs but of lesser price. I find a shop that matches my requirement. People sell the same design as others for two reasons. One, he does not have money to hire designers hence he employs tailors who can do the work at a lesser price. Two, the shop does not have any recognition of its owner hence the owner has to bring in something in trend. Now, I got what I wanted and he got what he wanted. Can we call this a win-win situation or should we call it stealing the originality of someone else? Would people buy expensive clothes when they can find the same at a much lesser value? The answer could be a yes or a no. I might still want to go and buy the same lehenga from Sabyasachi though the same would be available in other shops. Some might just get the same one stitched from a local market. All this boils down to the issue of right or wrong. This is subject to interpretations and personal opinions. But at the end of the day, it is undoubtedly stealing someone’s originality. Hence, no amount of guilty pleasure can be called out as an excuse to imitating or lifting someone’s design. Strict rules are necessary to curtail such merchandising. 

Now that we have discussed the aspect of design and merchandising, it is important to shed some light on what products should be sold. When the designer and the seller are two different parties, maximum care has to be taken while goods are given to the designers. While IPR protects the sellers there are limited laws that seek to protect the sellers. Strict laws should be made to protect the rights of the sellers or intermediate parties.

Online shopping. We come, we see, we buy. Rarely do we check the authenticity of what we buy. It is difficult to check the originality of online products. Hence, strict laws that are beyond just ‘return and refund policy’ should be brought in.

Social Media is a new e-commerce platform. With celebrities and tik-tokers promoting clothing websites, it is easy to commit fraud. One cannot blame the ones who promote. The exactly is the issue. Strict laws should be brought in that can regulate such advertising of products and websites. 

Above all, the most important issue is profit maximization. Profits should be maximized to the ones who deserve it. The best example to mention in this regard is weavers. It is often seen how the middlemen give them tens or hundreds and sell them for thousands and lakhs if the cloth is handwoven or a specific kind of silk.

All said and done, where there is a market, there is always scope for fraud and exploitation. For this to be minimized, definite laws must be made in the merchandise industry.

Conclusion

The textiles sector is one of the largest and the oldest sectors India. India has over the years witnessed unprecedented growth in the fashion industry. While abundant raw materials are one reason, skilled workforce who can beautifully carve what is raw into what can be worn is another reason. All thanks to globalization consumerism have been on the rise. Owing to this reason and coupling that with the rise in disposable income, the retail sector in India has witnessed rapid growth over the past few decades with the entry of international players like Zara, Nautica, and others into the Indian market. With people’s fascination with and idolizing of film stars, whatever they wear or endorse becomes so trendy that people dream of owning them. Hence, it can with ease be inferred that the film industry is and has been a mascot of promoting the fashion industry. In a country like ours with such a huge textile industry, the need for laws is the bare minimum. The paper with regards to the need for laws is divided into two parts for a reason. The reason is that, though merchandising and design are both two very important factors in the fashion industry, there is no unified law that protects them both.

The division is intended to reflect the importance of definite law in the fashion merchandising industry. With some countries having unofficial fashion ministers, it is high time India comes up with a separate unified law that governs the fashion industry if not having an entire ministry.

Kothari, V. R. (2013, October 11). Introduction to fashion merchandising. Retrieved from Textile Today.

Merchandising Types and Examples. (n.d.). Retrieved from Reflektion.

Narula, S. B. (2018). India: Fashion Law in India. Mondaq.

Ritika Private Limited vs Biba Apparels Private Limited, 182/2011 (Delhi High Court March 23, 2016).

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Counterfeit as per Black’s Law Dictionary, is the production of sale of an item which is not original but displays the original genuine trademark with the sole purpose of deceiving buyers.

Counterfeiting is a global concern today. From face powder to food products, from fake websites to fake social media profiles, from pain balms to vaccines, counterfeiting is widely prevalent. The fraudulent intention behind counterfeiting is what is dangerous and has to be curtailed at the earliest making it the need of the hour. The impact of the issue is so severe that people have reached a stage of hesitation to trust medicines. Covid-19 vaccine and its possible counterfeiting is the most recent and ongoing counterfeiting issue.

Counterfeiting in India

The Trade Marks Act, 1999 does not define ‘counterfeiting’. The definition can however be drawn from different dictionaries and the wide knowledge with regards to its practice. It can in simple words be put as an imitation of what we may call authentic.

The statutory and legal framework governing counterfeiting

The Trade Marks Act, 1999.

This is the principal legislation that governs trademarks in India. It provides civil and criminal remedies to infringement of a registered trademark. Unregistered trademark owner’s rights are recognised and protected concerning taking action against a registered trademark if the latter is the prior user.

The Copyright Act, 1957.

As the name suggests, copyright is a property right given to the original and authentic work and the person who publishes such work is given copyright to perform, adapt, develop, perform and display their original work. The act provides both statutory civil and criminal remedies against copyright infringement if any. The initiation action for such infringement does not require any registration.

The Designs Act, 2000.

A design is an umbrella term used to describe different features of a product. Shape, ornament, configuration, pattern or composition of lines or 2-D, 3-D colours, manufactured by the means of the industrial process are the different features that constitute the word Design.

Under this act, the remedies are only civil.

The Geographical Indication of Goods (Registration and Protection) Act, 1999.

An indication attached to goods related to geographical origin or manufactured good is dealt under the above act. The goods that come under the act are either agricultural, manufactured or natural goods come under this act.

Counterfeiting in cyberspace

Cyberspace is the most convenient space for counterfeiting the reason being its easy accessibility and approachability and anyone irrespective of identity being fake or real can have access to this space making it the most challenging task to curb counterfeiting in this platform.

The Information Technology (Intermediary Guidelines) Rules, 2011.

These guidelines are laid down to impose a duty on intermediaries concerning conducting due diligence over any content users post by providing adequate information regarding the restrictions under these guidelines. Clear guidelines are mentioned as an attempt to inform users about what to and what not to display, host, publish, modify, update, share or transmit information that might infringe any patent, copyright, trademark or any proprietary right.

Enforcement through customs:

The rights may be registered with Indian Customs under the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007 read by the Customs Act, to prevent the importation of infringing content into India. After that registration, the Commissioner of Customs may seize the consignment of the infringing material at the customs port and commence proceedings against the importer if it is satisfied that the material being imported will infringe the Registrant’s IP rights. The final order may require the utter confiscation of the offending goods, along with the importer’s penalties, which could amount to twice the value of the goods purchased.

ANTI-COUNTERFEITING IN INDIAN LAWS

The legal remedies to combat counterfeiting

Through the customs authority of India, the affected parties may enforce their intellectual property rights against an infringer by either criminal or civil action or enforcement.

Civil remedies

Code of Civil Procedure, 1908 governs civil remedies for infringement of Intellectual Property Rights. The Commercial Courts Act, 2015 was brought into force with the sole objective of putting forth efficient and effective redressal of commercial matters. Commercial courts at the district level and High Courts with original jurisdiction were set up as platforms of redressal. Any matter related to Intellectual Property is dealt with under the Commercial Courts Act. The concept of summary judgements was introduced wherein the courts could pass a final without any requirement of oral evidence in case the court is convinced with the other party’s slim chance of succeeding in the matter. Anti-counterfeiting cases are well fit in cases where summary judgements are invoked as they help in reducing a suit’s timeframe and provide proper remedies to the aggrieved parties.

Reliefs granted under civil action:

• Temporary/ex parte ad interim injunction:

A temporary or interim jurisdiction may be granted to the defendant without notice if the courts believe that a delay in granting injunction might lead to an irreparable loss of reputation and profit to the rightful owner.

• Anton Piller Order:

The court can appoint a local commissioner to seize or make an inventory of infringing goods.

• John Doe Order:

The court under this order empowers the local commissioner to enter an unnamed defendant’s premises to seize infringed material when there is an element of suspicion of the presence of such material in and around those premises.

• Books of accounts and profits:

Books of accounts and profits of the defendant can be seized by the court in an attempt to assess the extent of infringing activities to calculate damages.

• Permanent injunction:

A permanent injunction may be ordered by the court in an attempt to stop him/her from manufacturing or dealing with the infringed material.

• Damages and actual costs:

The court can direct the defendant towards payment of damages to the rightful proprietor of the Intellectual Property Rights after assessing the extent of infringed activities keeping in mind the interest of justice and costs of litigation.

Criminal remedies

Criminal remedies apply only to matters that come under the Trade Marks Act, 1999, Information Technology Act, 1999, the Protection of Plant Varieties and Farmers’ Rights Act, 2001 the Copyright Act, 1957 and the Geographical Indication of Goods (Registration and Protection) Act, 1999

Criminal action can be initiated against the infringing party by lodging an FIR or a lodging a complaint to the magistrate.  The police are empowered with the rights to search, seize goods and arrest the offender if the offence is cognizable. The offender is punished with imprisonment or for the specified term or fine or both as per the statute concerned.

CONCLUSION

Counterfeiting has spread its wings so far and wide that it is difficult to curtail it. While more and more acts are being introduced, new forms of counterfeiting are being witnessed over time. The graph has been up and sharp. One of the major reasons behind this growth is the access to technology which teaches people art to commit fraud. The genre of psychological and crime thrillers has hit in with such intensity that new forms of fraud and ways to get away with them are portrayed heroically. Though not, some of the fraudsters commit counterfeiting for easy money and under the influence of such sick movies and peer pressure. Counterfeiting cannot practically be put an end to but awareness regarding the ease of tracing the offenders if tried hard and the penalties involved might give an element of fear at least to some if not all.  As the saying goes, prevention is better than cure maximum efforts should be made to completely curb counterfeiting rather than coming up with acts that talk of what might happen after the offence is committed. The fraud would have been committed and people at the receiving end might have incurred heavy loss psychologically and mentally.

Bibliography

Counterfeit. (n.d.). Retrieved from THE LAW.COM DICTIONARY.

Counterfeiting, Piracy and Smuggling in India- Effects and Potential Solutions. (n.d.). The International Chamber of Commerce.

Open market for fake goods. (2010, December 12). India Business Law Journal.

Taking issue with counterfeits in India. (2014, August/September). World Trademark Review.

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