PhonePe v. BharatPe

On April 15, Hon’ble Justice C. Hari Shankar of the Delhi High Court decided an interim judgement in a commercial suit between PhonePe and BharatPe titled as Phonepe Pvt. Ltd. v. EZY Services & Anr, which is regarding the issue whether use of the suffix "Pe" in the "BharatPe" mark constituted infringement of the registered mark "PhonePe" and passing off. The Plaintiff, Phonepe Pvt. Ltd., claimed that Defendant No. 2, Resilient Innovations Pvt. Ltd., had violated their trademark rights in the mark PHONEPE by adopting and using the mark BHARATPE. The Court found no infringement and established the criteria for making such a finding.

The plaintiff had not individually registered parts of the ‘PhonePe' mark, according to Section 17 of the Trade Mark Act. Therefore, the Court ruled that ‘PhonePe' and ‘BharatPe' were composite marks, and that the plaintiff could not claim monopoly on the suffix “Pe” because it connoted pay and was descriptive of the plaintiff's payment service. The Court decided that simply misspelling pay as ‘Pe' would not entitle the plaintiff to exclusivity.

The court determined that the marks were completely different because the phrases "Phone" and "Bharat" were phonetically dissimilar, and the triangular device in defendant’s mark was original and not used by the plaintiff. The Court also dismissed claims of similarity based on the fact that both marks were written in the same font and were purple in color. The plaintiff was an online payment portal, whereas the defendants supplied a single QR code foundation through which clients could interact with consumer-facing UPI-based apps, including the plaintiff's app. Thus, according to the Court customers who interact with the apps should be able to tell the difference. As a result, the Court denied to award an injunction stating that the alleged similarity between the non-essential, unregistered component of the composite mark did not raise the issue of infringement.

The Court also looked into the law surrounding the "dominant mark" test. On the basis of the facts, the Court found that the assertion that ‘Pe' formed to be a dominant part or essential character of the marks, especially because it was written with a capital ‘P', the Court, however, was not persuaded by the argument and did not determine "Pe" to be the dominating portion, hence the marks could not be dissected for comparison.

Krishna Kishore Singh v. Sarla Saraogi & ORS.

This recent case is related to the suspicious death of famous Bollywood actor Sushant Singh Rajput, father of Sushant (Plaintiff) filed a lawsuit against the upcoming series and movies such as “Shashank” or “Suicide or Murder”. Plaintiff argued that such movies must be injuncted and should not be released or communicated to the public on the grounds of publicity rights, privacy rights defamation etc.

After reviewing of the facts and arguments The Delhi High Court came to the decision that the plaintiff’s appeal for the injunction of these movies is not valid because there is not any kind of violation appears of publicity rights or privacy rights of the family of Sushant or of the Sushant itself. The Defendant are not using the real names, images or any other likeness of actor’s life. The film contains appropriate disclaimer and after the death of a celebrity, celebrity rights may not subsist and in that case, Defendant can use release their art piece in the public domain without having any liability. The court also pointed out that the question of defamation is speculative only without access to the content which is actually defamatory.

Hence, in this case, the Delhi High Court refused to put injunction on the release of these movies and series related to Sushant Singh Rajput. This case talks majorly about publicity rights and privacy rights on social platforms and in India it’s still a grey area and more specific approach is necessary in this field.

Sony Pictures Network India PVT. V. Sportsala.TV and Ors.

In this case, the plaintiff Sony Pictures filed a lawsuit against various websites available on browsers for the permanent injunction against distribution, production, reproduction or making the content available on their platforms of the cricket matches going on of India v. England and India v. Srilanka. The plaintiff demands for an interim injunction on the activities of defendant because it infringes the copyrights of the plaintiff under Section 51 of the copyright Act, 1957 and because of which the other problems like sharing of audience, low TRP and less advertising capabilities affected their business, because of which plaintiff demanded permanent injunction against such illegal activities and to safeguard the interests of plaintiff on their copyrighted materials.

The Delhi High Court after reviewing the facts and arguments of the parties granted an injunction in favor of Sony Pictures. A dynamic injunction was also granted against the website which reproduce, making available the content related to cricket matches and broadcast or distribute the contents in the public domain. The court in this regard passed an order to block such websites and asks government of India to give directions in this regard and to protect the copyrights of Sony Pictures for the broadcasting of these matches.

Cable operators are also covered in this injunction and local officers are appointed by the court to check on the violation of court’s decision. The said order of the court covers the Copyrightable content owned by Sony Pictures related to the cricket matches and such implications permit non infringement of the content and safeguard these copyrights owned by the plaintiff.

Dassault System Solid Works Co-op & Anr v. Spartan Engineering Industries Pvt Ltd.

The case is related to copyright infringement of a software, plaintiff 1 is an owner of a software named “Solidworks”, By this software modelling and development happened of products in a 3-D environment. Basically, it’s a French company doing their operations in India so plaintiff 2 is an associate of plaintiff 1 which majorly operates the activities of the company only in the territory of India.

The argument of plaintiffs is that the software is developed by their employees and hence the copyright belongs to the plaintiff only. Plaintiff considered that the instructions of the software including manual instructions are all comes under the literary works of Copyright Act 1957 and fully entitled to get copyright on the software. The software first introduced in USA and then launched in India; the software is entitled to get copyright protection under section 40 of the Copyright Act 1957.

Plaintiffs allege that in the year 2018 many pirated and un authorized version of their software are comes in the public domain for commercial purposes by the defendant without paying any kind of license fee for the same. Plaintiffs also highlighted that such use of their software is increased since few months and now they are not able to resolve the issue with the defendant as the defendant denying the infringement of the copyright and continuing illegal activities and infringing the copyrights of Solidworks.

Plaintiffs demanded for an injunction because any pirated or unauthorized access to their software would leads to the copyright infringement under section 51 of the copyright Act 1957. Further, under section 63B of the said Act, knowingly using any kind of pirated computer program would amount to criminal offence and violation of End user license agreement by the defendant also caused contractual and intellectual property infringement and sufficient compensation should be provided to the plaintiff and punishment must be given to the defendant for the illegal use of their copyrighted material.

The court issued the order and observed that the infringement of software is a serious issue and should be stopped as soon as possible. The court granted an ad interim ex parte injunction to the plaintiffs and restrain the defendant from using, distributing any pirated, unauthorized or unlicensed software programs owned by the plaintiffs.

Kaira District Cooperative Milk Producers Union & Anr v. Maa Tara Trading Co. & Ors.

The plaintiff in this case was Kaira District Cooperative Milk producers Union Ltd. They are old pretty old and reliable supplier in the specific area and also the proprietor of the trademark ‘Amul’. Plaintiff contended in the plaint that defendants were incorporating the trademark of ‘Amul’ with identical fonts and similar labels in candles form which looks pretty similar to the original trademark of ‘Amul’ therefore it was alleged to be an act of trademark infringement by the plaintiff. The counsel from the side of plaintiff also pointed out that the trademark of ‘Amul’ is a well-known trademark across the country and in the Trademark Registry, and because the products of the defendants are sold in dairy and cake shops and bakeries the operations of plaintiff and that of the defendants are pretty much similar and there exist a pretty high likelihood that consumers would associate such infringing and fake products with the products of plaintiff.

The Calcutta High Court after reviewing the facts and the arguments of the plaintiff observed that the use of similar fonts and logo by the defendants, amounts to the infringement of the trademark ‘Amul’ owned by plaintiff because the products they are selling to their customers are pretty much similar and the customers itself of both the parties are same which causes a high chance of confusion among the customers to identify the real owner of the goodwill and reputation of the trademark.

Hence, The High Court of Calcutta duly passed an order of temporary injunction and to restrain the defendants from using the trademark ‘Amul’ in connection with their products until the disposal of the suit.

This article is a post from the admin @ Tech & IP Law Policy Review.