AI Structured Summary
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Judgment
S. No.,Trademarks,"Application/Registration
No. and Status",Class,Owner/Proprietor
1.,,2110751 Registered,39,"DRL Logistics Private
Limited
2.,,3676384 Registered,"9, 25, 2, 8, 41","Drone Racing League
Inc.
3.,,3805949 Pending,5,"Sah Agrovet (OPC
Pvt. Ltd.
4.,,3534721 Registered,7,"Surinder Kumar Trading
as Data Ram and Sons
can be taken away at the instance of a Plaintiff on specious pleas. He submitted that freedom of speech certainly allows the Defendant to use the acronym/letters ‘DRL’ in creative fictional works. The movie is not a documentary, but a",,,,
feature film and does not relate or aver to pharmaceutical companies in the slightest. In support of this contention, Mr. Sethi relied upon the judgments of Tata Sons Ltd. v. Greenpeace International & Anr., 2011 SCC OnLine Del 466. Prakash",,,,
Jha v. Bata India Ltd. 2012 SCC OnLine Del 5682, and Bata India Ltd. v. Prakash Jha Productions (2013) 1 SCC 729.. As an arguendo, Mr. Sethi submitted that if the Defendant’s actions cannot be construed as infringement, then",,,,
Plaintiff could, at max, contend that the action of the Defendants amounts to defamation of the Plaintiff. On this aspect also, the law is well established that in matters relating to publication of allegedly defamatory content, the Courts are",,,,
extremely reluctant in granting injunctive relief. The Plaintiff could rather pray for adequate monetary compensation of the alleged loss occasioning on account of injury to its reputation, in case the content is proven to be actually defamatory.",,,,
Lastly, Mr. Sethi submitted that words ‘DRL’, ‘DRL Township’ and ‘DRL Group’ have been used at several instances in the movie, and it would impracticable, if not next to impossible, for Defendant No. 1 to sift",,,,
through and edit the entire movie, at such a short notice. The movie in question is due to release within a week; the Defendant has spent crores on the project; and has also created several third-party rights in the process. The balance of",,,,
convenience thus lies in its favour, and if the Court were to grant an injunction, it would gravely prejudice the Defendant, cause humongous losses, and also dent its image in its industry.",,,,
ANALYSIS AND FINDINGS,,,,
Having heard the arguments of the parties at length, the contentions advanced by the parties can be dealt with, under the following heads:",,,,
A. WHAT IS PLAINTIFF’S RIGHT OVER THE ACRONYM/ LETTERS ‘DRL’,,,,
Plaintiff claims to be the proprietor of the registered trademark ‘DRL’ in relation to goods in Class 05 i.e., pharmaceutical preparations. However, along with the plaint, no evidence has been placed on record to show the use of the",,,,
registered trademark ‘DRL’, in respect of the pharmaceutical preparations or otherwise. The Plaintiff has not filed any advertisement extracts, invoices, product packaging etc. that could indicate to the Court that the Plaintiff is using",,,,
‘DRL’ in relation to its products/services. The application for registration was under ‘proposed to be used’ category. The Plaintiff is unable to show the use of the registered mark from the date of the application of the trademark,,,,
which i.e. 9th February, 2007 till the filing of the suit. In Corn Products Refining Co. Ltd. v. Shangrila Food Products Ltd. AIR 1960 SC 142, the Supreme Court has held that it is not permissible to draw any inference as to use from mere",,,,
presence of the mark on the register. To sustain an action of infringement, it is imperative to exhibit continuous and sustained use of the mark, to demonstrate that it has acquired distinctiveness. On this count, the Plaintiff has failed.",,,,
Defendants have also brought to the notice of the Court that during examination, an objection was raised under section 9 of the Act against Plaintiff’s registration of the acronym DRL, to which the Plaintiff had submitted that “DRL is",,,,
part of their trading style and has no specific meaning or significance to goods covered by the said trademark applicationâ€. Therefore, it appears, prima facie, that the Plaintiff is asserting its claim on ‘DRL’ in the context of the short-",,,,
form of its corporate name â€" Dr. Reddy Laboratories Limited, and its primary trademarks. Moreover, registration of the trademark in one class cannot, by itself, give the Plaintiff an unrestricted right or monopoly over the letters D, R and L,",,,,
when used in that order.,,,,
In fact, the Plaintiff is trying to establish its association with the word mark ‘DRL’, not only on the basis of its trademark registration, but essentially on the basis of news articles published in English newspapers such as Indian",,,,
Express, Business Standard and Economic Times, which have been placed on record. In the said articles, it is noticed, that the reference to ‘DRL’ is simply as an acronym and is also followed or preceded by the full name of the",,,,
Plaintiff. Thus, it is observed that these articles do not use ‘DRL’ on a standalone basis, and the authors of the articles have used the initials of the company in the nature of an abbreviation for mere ease of reference.",,,,
Now the question arises as to what is Plaintiff’s right, if any, in this acronym. This question will be delved into in detail at the stage of trial. However, for the limited purpose of deciding the present application for injunction, in the",,,,
absence of any material placed on record, it cannot be said that such an acronym has acquired distinctiveness and is associated only with the Plaintiff. As is rightly pointed out by the Defendant, there are several third-party companies whose",,,,
trade names consist of the acronym ‘DRL’, and the same are in fact registered with the Ministry of Corporate Affairs (MCA). Plaintiff’s own documents reflect a third-party company trading as ‘DRL Pharma Private",,,,
Limited’ which is in the same industry as that of Plaintiff, i.e. involved in the business of pharmaceutical products. Even on the register of the Registrar of Trade Marks, ‘DRL’ and its combinations are shown to be the registered",,,,
marks of several other entities in various classes, as evident from the material placed before this Court by the Defendant (as extracted earlier). It indicates that various third parties are using and are also registered proprietors of the trademark",,,,
‘DRL’ in relation to several types of businesses. Defendants also contend that ‘DRL’ is a popular abbreviation for ‘Daytime Running Lamps’ and various entities are using the acronym for describing the said feature in their,,,,
products. The acronym ‘DRL’ is also used by the Defence Research Laboratory, India. There is no material for the court to hold that DRL is synonym to the Plaintiff’s corporate name. Thus, prima facie, the Court is unable to opine",,,,
that there is any tangible connection or direct association of the acronym ‘DRL’ with the Plaintiff’s trademark / companies / brand. In the absence of the same, the Plaintiff does not meet the test of establishment of a prima facie",,,,
case, so as to be entitled to an injunction.",,,,
B. WHETHER THE USAGE OF ‘DRL’ IN THE MOVIE AMOUNTS TO INFRINGEMENT OF THE PLAINTIFF’S TRADEMARK?,,,,
As the Plaintiff’s registration of the trademark ‘DRL’ is in respect of pharmaceutical preparations, thus its right, too, on a prima facie basis, is limited to the said goods. Be that as it may, the use of ‘DRL’ by the",,,,
Defendants which is alleged to be infringement, is now called in question. Defendant No. 1, in its reply to the Plaintiff’s notice, and also before this Court, has explained that the acronym ‘DRL’ in the movie is not a standalone use,",,,,
but a composite term such as ‘DRL Township’, ‘DRL Township Group’ or ‘DRL - Drishti Refineries Limited’. The extracts of the usage are represented herein below:",,,,
Even on a scrutinous comparison, the court finds absolutely no similarity with the Plaintiff’s business. The fictitious entity of Drishti Refineries Limited is involved in the business of setting up refinery plants, which is completely distinct",,,,
from that of the Plaintiff. The afore-noted usage of acronym ‘DRL’, has no co-relation with the Plaintiff’s primary trademarkâ€" Dr. Reddy and/or its body corporate i.e. Dr. Reddy’s Laboratories Ltd. Thus, prima facie, the",,,,
Court does not find merit in the contention of the Plaintiff that the aforesaid portrayal would amount to the general populace drawing an association with the Plaintiff company. Besides, ‘DRL Township’ / ‘DRL Township Group’",,,,
cannot be appreciated, de hors the context of the movie, wherein the complete name of the fictitious entity, Drishti Refineries Limited, is stated to have been used explicitly. Moreover, to address the concern of the Plaintiff, the counsels for the",,,,
Defendants have assured this Court that the movie is preceded by a disclaimer to the effect that “all characters appearing in this work are fictitious. Any resemblance to real persons, living or dead, is purely co-incidental.†Therefore, in",,,,
view of the Court, the prima facie case is not made out in favour of the Plaintiff, to suggest that the average movie-goer would associate the name ‘DRL Township’ in the movie as a reference to the Plaintiff’s brand or business.",,,,
The well-established ‘ordinary person test’ also leads to the same conclusion.,,,,
The Plaintiff has also contended that environmental issues are mainstream business, and in the present times, consumers want to buy products and services of companies that are compliant with environmental, social and corporate",,,,
governance principles. As the products of the Plaintiff company are bought on the trust that consumers repose in them, any association to the activities of ‘DRL Township’ in the movie which is portrayed as having no regard for the",,,,
environment, would be detrimental to its brand. This argument is clearly far-fetched. The correlation that is being conceived between the use of ‘DRL’ in the movie, the movie-viewer’s possible association with the plaintiff, and the",,,,
likely negative impact on the Plaintiff’s reputation keeping CSR objectives is mind, is a creative argument at best, based on assumptions and surmises, and lacks a material foundation in the first place. Plaintiff is also unable to show any",,,,
material that the teaser/trailer of the film, which has been in the public domain for nearly one year, has made any negative impact in the minds of general public or that the use of ‘DRL’ has been understood to be as reference to the",,,,
Plaintiff Company.,,,,
Next, we shall deal with Plaintiff reliance’s on Section 29(8) of the Act. First and foremost, the plaint filed before the court does not even pray for relief of account of infringement. Plaintiff has however relied upon the said provision to",,,,
contend that the use of ‘DRL’ by the Defendants constitutes infringement, as the advertisement is against the reputation of the Plaintiff’s trademark. In view of the above discussion, since the Court does not find any similarity, direct",,,,
or indirect correlation, or association with the use of ‘DRL’ by the Defendants with the Plaintiff’s mark/brand, the question of the usage being against the reputation of the trademark of the Plaintiff becomes merely speculative.",,,,
Nevertheless, on a prima facie basis, in the view of the Court, Plaintiff’s reliance on Section 29(8) of the Act does not entitle the Plaintiff to a grant of relief of injunction in the facts of the present case. Section 29, which deals with",,,,
infringement, has several sub-Sections, all of which have to be read together in conjunction. The use of a trademark in the course of trade, and in connection with the sale of goods or services, constitutes infringement, if it is used in such a",,,,
manner that it is likely to cause confusion in the minds of a consumer as to the identity of those goods or services. Therefore, the use of ‘DRL’ by the Defendants cannot be examined in vacuum. One can easily notice that the",,,,
Defendants’ use of DRL, certainly, is not akin to the use of a trademark, in respect of the goods/services for which the Plaintiff is the proprietor. Therefore, the Court does not find a prima facie case of infringement.",,,,
This brings us to the judgments relied upon by the Plaintiff on the proposition that the use of registered trademark in advertising amounts to infringement if the same is against the reputation of the trademark. The said judgments are clearly,,,,
distinguishable on facts. In Hamdard National Foundation (supra), the Plaintiff therein claimed that the remarks made against the quality of its beverage, by a character in a cinematographic film, were detrimental and damaging to its goodwill",,,,
and reputation, and sought an injunction on this basis. The Delhi High Court considered the Supreme Court’s decision in Bata Limited (supra), wherein it was opined that derogatory remarks against a brand can be put to restrictions and",,,,
conditions on a case-to-case basis. While differentiating Bata (supra), it observed that the facts therein stood on a different footing from the facts before the High Court, as the usage of the product in Hamdard (supra) was targeted and",,,,
specific, through visual as well as spoken depiction, and was avoidable, uncalled for, and in poor taste. Thus the same was likely to tarnish the reputation of the brand among its consumers. For such reasons, a partial restrain was allowed by the",,,,
High Court, by directing the producers to omit the objectionable dialogue from the home video version of that film. However, in the present factual matrix before us, the reference to the trademarked name ‘DRL’ is ambiguous and",,,,
representative at best. It, more importantly, does not specifically show or target the brand or business of the Plaintiff herein, for which reason, the Hamdard judgment stands differentiated and cannot support the Plaintiff’s contentions. The",,,,
judgment of this court in Hindustan Unilever (supra), was a case of comparative advertising between Dettol and Lifebouy soaps, and therefore, the tests and principles applied by the Court therein cannot be of any assistance to the case sought",,,,
to be canvassed by the Plaintiff in front of this Court.,,,,
This Court also finds merit in the contention of the Defendants that if the law permits an honest usage of a trademark within an advertisement, the Court should grant an injunction for use of a fictitious term in a fictional feature film. In the",,,,
facts of the instant case, the use of ‘DRL’ by the Defendant cannot be construed to be comparative, misleading, deceptive and/or disparaging.",,,,
On the aspect of free speech vis-à -vis trademark protection, the stance of this Court is quite clear. A serious view was taken in Tata v. Greenpeace (supra), where injunction was sought against Greenpeace’s use of Tata’s",,,,
registered logo in a game called ‘Turtles versus Tata’, which was an attempt to underline the effect of the Dhamra Port Project on Olive Ridley turtles’ habitat. Therein, this Court held as under:",,,,
“42. The above analysis would show that the use of a trademark, as the object of a critical comment, or even attack, does not necessarily result in infringement. Sometimes the same mark may be used, as in Esso; sometimes it",,,,
may be a parody (like in Laugh it Off and Louis Vuitton). If the user’s intention is to focus on some activity of the trademark owners, and is “denominativeâ€, drawing attention of the reader or viewer to the activity,",,,,
such use can prima facie constitute “due cause†under Section 29(4), which would disentitle the plaintiff to a temporary injunction, as in this case. The use of TATA, and the ‘T’ device or logo, is clearly",,,,
denominative. Similarly, describing the Tatas as having demonic attributes is hyperbolic and parodic. Through the medium of the game, the defendants seek to convey their concern and criticism of the project and its perceived",,,,
impact on the turtles habitat. The Court cannot annoit itself as a literary critic, to judge the efficacy of use of such medium, nor can it don the robes of a censor. It merely patrols the boundaries of free speech, and in",,,,
exceptional cases, issues injunctions by applying Bonnard principle. So far as the argument by the plaintiff that it is being “targeted†is concerned the Court notes that the defendants submit that the major gains through",,,,
the port accrue to the Tatas.,,,,
(...) This is because the Courts, the world over, have set a great value to free speech and its salutary catalyzing effect on public debate and discussion on issues that concern people at large. The issue, which the",,,,
defendant’s game seeks to address, is also one of public concern. The Court cannot also sit in value judgment over the medium (of expression) chosen by the defendant since in a democracy, speech can include forms such",,,,
as caricature, lampoon, mime parody and other manifestations of wit. The defendant may - or may not be able to establish that there is underlying truth in the criticism of the Dhamra Port Project, and the plaintiff’s",,,,
involvement in it. Yet, at this stage, the materials on record do not reveal that the only exception - a libel based on falsehood, which cannot be proven otherwise during the trial-applies in this case. Therefore, the Court is of",,,,
opinion that granting an injunction would freeze the entire public debate on the effect of the port project on the Olive Ridley turtles’ habitat. That, plainly would not be in public interest; it would most certainly be contrary",,,,
to established principles.â€,,,,
Plaintiff perceives the movie to be a “serious representation of fictional facts which could be a reality†and argues that “untruthful speech is not protected under Article 19(1)(a) of the Constitutionâ€. This argument is twisted and is,,,,
contrary to the concept of freedom of speech, an unalienable right guaranteed by the Constitution of India and the most precious of all liberties. Tata v. Greenpeace (supra) discusses at length, why entertainment, literature and other art forms",,,,
should not be critiqued on by the Courts or pertinaciously restrained from its release to the masses. An artist’s right of free speech and expression includes their right to criticise and question. Even if the expression is upsetting for some, the",,,,
artist cannot be silenced. The discomfort generated by an artist’s expression cannot be a ground for silencing ideas at the altar of maintaining a corporate’s goodwill. This would amount to gatekeeping the debate and keeping,,,,
uncomfortable ideas out of bounds. Moreover, environmental damage by humans (dubbed ‘Ecocide’) is an important issue in the present milieu and requires widespread boost and dialogue to raise awareness. To that effect, as suggested",,,,
in the teasers, the theme of the movie is to bring to light the struggles of communities on the fringes of the society in their fight against deliberately negligent organizations, for the protection of animal rights, forest lands and ecologically sensitive",,,,
areas. While it is indeed unfortunate, that the acronym of the fictional corporate entity fashioned by the Defendants in their movie, coincides with the acronym of the Plaintiff’s corporate name, however, this in itself cannot be the sole",,,,
ground for granting an injunction against the release of a certified feature film. The Plaintiff claims that its brand identity is sensitive to the negative imagery which will form in the minds of environmentally-conscious movie-goers, pertaining to a",,,,
fictitious company in a fictional movie, which neither appropriates the name, nor the business, nor any real-world relation to the Plaintiff’s brand. Such an abstract and far-fetched association, cannot, in the mind of this Court, be sufficient",,,,
to tether the freedom of speech and expression granted to the Defendant by the Constitution. This is nothing but a hypersensitive position taken by the Plaintiff.,,,,
C. DELAY IN APPROACHING THE COURT,,,,
The Court finds considerable merit in the objection of the Defendants regarding delay on the part of the Plaintiff in seeking legal relief. The Defendant has pointed out that the teaser of the movie, which contained the alleged infringing use,",,,,
was published in the month of February, 2020 and has garnered millions of view on YouTube. Yet, the Plaintiff has approached the doors of justice just days before the release of the movie. In fact, it is the admitted case of the Plaintiff that",,,,
upon sighting the alleged use of its mark in 2020, the Plaintiff sent a legal notice dated 3rd March, 2020, but the teaser was not brought down by the Defendants. The Plaintiff, despite receiving no response for the same, the Plaintiff did not",,,,
approach the Court. According to the justification provided by Mr. Lall, the lack of release of the movie on its originally set date of 2nd April, 2020, along with the lack response to its notice, led the Plaintiff to assume that same is an admission",,,,
of the facts contained in its notice. Mr. Lall submits that the present suit is timely, because when the Plaintiff noticed that the Defendants have launched a trailer video of the movie on YouTube on 4th March, 2021 and was apprised of its",,,,
release on 26th March, 2021, the Plaintiff issued the notice dated 8th March, 2021, which was replied to by the Defendants on 12th March, 2021, refuting the assertions in the legal notice, and the present suit was filed without delay on 17th",,,,
March, 2021. This line of reasoning is not convincing in the slightest and cannot justify the delay of filing the present action, the timing which is highly suspect and belated, being just few days before the date of release of the movie. The cause",,,,
of action for the Plaintiff to approach the Court, arose as early as, February, 2020 and the present suit filed after nearly one year of first coming into the knowledge of the infringing action. This laxity would disentitle the Plaintiff of the",,,,
discretionary relief of injunction, which is based on equity. In this one year, the Defendants have gone ahead with the preparations for the release of the movie by expending monies, time and energy and entering into contracts with third parties.",,,,
This, as rightly contended by the Defendant, would tilt the balance of convenience in its favour. The Plaintiff has tried to differentiate the judgment of this Court in John Hart (supra), by justifying that the belated action was under a bona fide",,,,
belief that the movie of the Defendants was not released, however the same is clearly misplaced. Besides, the judgment of this Court in Hindustan Pencils (P) Limited v. Indian Stationery Products Co. & Anr. AIR 1990 Delhi 19, would not",,,,
advance the Plaintiff’s case, as the facts in the said case are clearly distinguishable. The said case was regarding trademark infringement, where the Defendants had continued to do its business by using the registered device and word",,,,
mark of the Plaintiff. The Court therein held that such a use by the Defendants was at its own peril and cannot be set up as a defense. Further, the Court in the said case noted that it was not in dispute that the mark used by the Defendants",,,,
was similar to that of the registered mark of the Plaintiff and there was, thus, a clear breach of the Plaintiff’s right under the Act. However in the present factual matrix, the injunction is being sought against the release of the movie, when",,,,
the balance of convenience has clearly shifted in the favour of the Defendants, and thus the case is distinguishable on facts. In the opinion of this Court, on the ground of delay itself, the Plaintiff would be disentitled to the relief of injunction as",,,,
sought for in the present application.,,,,
CONCLUSIONÂ Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â,,,,
Thus, on the consideration of the facts and circumstances noted above and the legal position on the subject, in the considered opinion of this Court, the Plaintiff has failed to meet the three-pronged test for grant of injunction. The Plaintiff",,,,
does not have a prima facie case in its favour, the balance of convenience is in favour of Defendants and not in favour of the Plaintiff. The Plaintiff has not been to able make out a case of irreparable loss that it would suffer if the movie is",,,,
released. The Plaintiff can always, in such circumstances, if it succeeds in establishing its case in trial, cement its claims for compensation and damages. In these circumstances, the present application is completely devoid of merits and",,,,
accordingly, the same is dismissed.",,,,