IPRMENTLAW WEEKLY HIGHLIGHTS (MARCH 23-29)

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IMI PRESS RELEASE: INDIAN MUSIC INDUSTRY, HEAVILY DEPENDENT ON CASHFLOWS, HIT HARD BY CORONAVIRUS; SMALLER LABELS FACE EXISTENTIAL THREAT

The Indian Music Industry’s members whose existence is solely dependent on releases of feature films, public performance revenues from events and concerts amongst others have started to suffer on account of drastically reduced cashflows as film releases have been stalled and public performances revenues have dried due to cancelled music events and F&B outlets being shut.

IMI members follow a business model where they pay minimum guarantees (MGs) to film producers who demand substantial money upfront, well in advance for film music acquisitions. The music industry’s money is locked into film releases which may now be indefinitely postponed with no signs of predictable recovery. Around 80% of revenues come from film music for the recorded music industry.

Another fall out is the large numbers of artists, technicians, sessions musicians being rendered unemployed with the closure of film production, live events, F&B sector.

Vikram Mehra- Chairman, IMI stated “we are indeed looking into a financially unstable situation in the near to medium term. Consumer attention is centred around the virus and hence softer industries like ours are the first to be hit. Recordings being cancelled and postponed means many daily wage musicians supporting their families will face a hard time and record labels will not be able to recoup their investments- either paid as MGs to film producers or investments in independent music called I-Pop

According to Tarsame Mittal of TM Talent Management: “The events industry is hit hard due to concerts getting cancelled and many artists, support staff who depend on their concerts for livelihood, especially the smaller stature artists and new artists are the worst hit.”

According to Rajat Kakar, CEO PPL India: “Public Performance income, a large part of the music industry’s livelihood especially that of the smaller music labels who survive on this revenue source has taken a beating due to cancellation of events. These smaller labels need public performance revenues to survive”.

Said Blaise Fernandes, CEO and President of IMI: “The silver lining in this bleak outlook is COAI asking OTT Service Providers to lower the quality of feeds, that’s an indicator that the OTT services ae doing well given the work from home situation. This will translate into revenues for the copyright holders in the industry going forward. This is apart from the suffering of the daily wage music bands who perform music at weddings and other social events.”

JAVED AKHTAR ANNOUNCES THAT IPRS WILL PROVIDE FINANCIAL SUPPORT TO OVER 3,000 MUSICIANS

Mr. Javed Akhtar, chairman of Indian Performing Rights Society (IPRS) recently announced that IPRS will be providing monetary support the less fortunate class during the countrywide lockdown due to the coronavirus outbreak. He declared relief packages for musicians belonging to the weaker class of the society. The funds will reportedly pay over three thousand musicians for them to make ends meet amidst the coronavirus lockdown.

FMCG GIANTS BATTLE IT OUT AMIDST THE PANDEMIC OUTBREAK

Lifebuoy soap manufacturing Hindustan Unilever Limited (“Plaintiff”) took Dettol manufacturer Reckitt Benckiser India Pvt. Ltd. (“Defendant”) to the Hon’ble Bombay High Court for its most recent commercial (“Impugned Commercial”) for disparagement and infringement of its trademark and copyright.

It was alleged by the Plaintiff that the Impugned Commercial by the Defendant is a blatant copy of its advertisement and portrays that washing hands with a soap bar is ineffective and it is best to use a Dettol hand wash to stay clean of germs in this pandemic situation.The Plaintiff sought damages (general, special and exemplary) worth Rs. 1 crore.

After the Defendant said that the Impugned Commercial would be suspended for the time being, the Hon’ble Judge by order dated 20th March, 2020, adjourned the matter till 20th April, 2020.

LACK OF CONSENSUS AT IAMAI’S MEETING ON ITS DCCC CONTENT REGULATION CODE

In a stakeholder meeting held via video conferencing on March 18th 2020, by the Internet and Mobile Association of India (IAMAI) with several streaming platforms, lack of consensus appeared amongst various platforms in relation to its latest content regulation code. The call, saw participation from Netflix, STAR India (Disney), Reliance Jio, Apple, Amazon, MX Player, Zee5, Apple, Viacom, Shemaroo, SonyLIV and Hungama, among others.

On the call, the IAMAI had sought support for its latest content regulation code, given that MIB Minister Prakash Javadekar has given the industry 100 days to finalize a self-regulatory code that has participation of much of the online streaming and entertainment industry. Depending on what is finalized, the code could end up affecting the availability of shows and movies on online streaming services, and how shows are possibly censored and subtitled.

HEARINGS AT THE TRADEMARK REGISTRY ADJOURNED TILL APRIL 15, 2020

Vide a public notice dated March 16, 2020, the Trademark Registry adjourned that all hearings relating to trademarks matters scheduled between March 17, 2020 to April 15, 2020. It has been further notified that the matters will be rescheduled in due course of time and the hearings scheduled after April 15, 2020 will remain as it is.

The Trademark Registry’s notice adjourning the hearings can be accessed here.

MULTIPLEXES DEMAND EXEMPTION FROM STATUTORY DUES, LOAN MORATORIUM

The Multiplex Association of India (MAI) has requested the government to grant exemption to multiplexes from payment of statutory dues and a loan moratorium for one year in view of them being hit hard due to the closure ordered by various state governments in the wake of the coronavirus outbreak in the country. The MAI has also asked for a waiver of the minimum demand charges on electricity.

DELHI HC RESTRAINS DMW E-RICKSHAW FROM USING MARK SIMILAR TO THAT OF BMW

The interim order was passed by a single Judge Bench of Justice Jayant Nath in a suit filed by Bayerische Motoren Werke AG seeking to permanently restrain e-rickshaw manufacturer, Om Balajee Automobile from manufacturing, exporting or otherwise dealing with goods bearing the mark ‘DMW’ or any other mark which is identical or deceptively similar to BMW.

BMW argued that the Om Balajee’s mark DMW was deceptively similar to in appearance, sound and structure to the ‘BMW’ mark and was thus is in complete violation of the Bayerische Motoren Werke AG’s trademark rights.

The Plaintiff contended that the Defendant was using DMW mark in relation to goods such as e-rickshaws which were somewhat similar to automobiles covered by the BMW mark.

The Defendant, on the other hand, argued that the nature of the product, class of buyers and trade channels of the product of the two were entirely different. It was also stated that colour, font and size of the two marks were not deceptively similar.

The Court rejected the Defendant’s argument based on the different nature of the products manufactured by the two companies. Observing that the strength of the Plaintiff’s trademark could not be disputed, the Court said, “The use of the mark DMW by the defendant prima facie appears to be a dishonest act with an intention of trying to take advantage of the reputation and goodwill of the brand of the plaintiff. It is likely to mislead an average man of ordinary intelligence. Such use by the defendant is detrimental to the reputation of the registered mark BMW of the plaintiff company.”

SHIVANI TIBREWALA V/S RAJAT MUKHERJEE: BOMBAY HIGH COURT REITERATES NO COPYRIGHT IN AN IDEA

Plaintiff Shivani Tibrewala had filed a copyright infringement suit against Rajat Mukherjee alleging that their cinematographic work named “Umeed” is a substantial reproduction or altered copy of her script of the play “The Laboratory”. The theme of the script was on clinical trials.

The court, relying on the principles laid down in R.G. Anand v/s. Delux Films, held that the work of the Defendant does not amount to infringement of copyright of Plaintiff. The decision was based on the Court not finding any substantial similarities in the protectable elements of the works in question. The Court further noted that there cannot be a monopoly on a theme of illegal drug trial or big pharmaceutical companies indulging in it and that the Defendants have prima facie proved that their work is original and has been independently arrived at.

Read order here.

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