Delhi High Court passes unique ‘dynamic+ injunction’ to curb illegal streaming of existing and future content of 6 studios

In Universal City Studios LLC & Ors v. DotMovies.Baby and Ors, the Delhi High Court has restrained 16 rogue websites as well as their mirror/redirects or alphanumeric variations from streaming or making available for download existing and future content of six American studios. Netflix Studios, Disney Enterprises, Warners Bros, Columbia Pictures, Paramount Pictures, and Universal City Studios had approached the High Court. They stated that these rogue websites are permitting the viewing, streaming, accessing, and downloading of their copyrighted content without any license or authorisation.

Justice Prathiba M Singh quoted that such a ‘dynamic+ injunction’ was necessary in light of the dynamic nature of infringement being undertaken by the “hydra-headed websites”. She quoted on the same, “To keep pace with the dynamic nature of the infringement that is undertaken by hydra-headed websites, this Court has deemed it appropriate to issue this ‘Dynamic+ injunction’ to protect copyrighted works as soon as they are created, to ensure that no irreparable loss is caused to the authors and owners of copyrighted works, as there is an imminent possibility of works being uploaded on rogue websites or their newer versions immediately upon the films/shows/series etc.”

The Court underlined that there is an imminent need to evolve a global consensus to protect copyright owners because despite Internet Service Providers (ISPs) blocking these websites, they can be accessed through VPN servers, and other methods to which the long arm of the law cannot extend.

Observing that the copyright in future works comes into existence immediately upon the work being created, the court said that the American studios may not be able to approach court for each and every film or series that is produced in the future to secure an injunction against piracy. As innovation in technology continues, remedies to be granted also ought to be calibrated by Courts. This is not to say that in every case, an injunction qua future works can be granted. Such grant of an injunction would depend on the fact situation that arises.

Read order here.

Injunction refused by Delhi High Court Against Telugu Film In Trademark Infringement Suit By Makers Of Akshay Kumar Starrer

The Delhi High Court has dismissed a plea by the production house behind Akshay Kumar starrer films, Khiladi and Main Khiladi Tu Anari, against the use of the word “Khiladi” in the title of a Telugu film.

In the case of Venus Worldwide Entertainment Private Limited vs PEN Private Limited, Justice Jyoti Singh rejected the application seeking interim injunction instituted by Venus Worldwide Entertainment Private Limited, the production company which produced the 1992 blockbuster movie featuring Kumar.

The Delhi High Court dismissed the plea on the following grounds:

  • Since the Plaintiff has registrations only in the device marks, it cannot claim exclusivity or monopoly over the word ‘KHILADI’ as that would amount to achieving something indirectly which the Plaintiff was unable to achieve directly.
  • In trademark law jurisprudence, protection to a trademark depends on whether the mark is generic, descriptive, suggestive, arbitrary, or fanciful.
  • The mark “KHILADI” is not the dominant part of the plaintiff’s device mark, being generic and non- distinctive.
  • Plaintiff’s mark contains prominently displayed pictures of the star cast i.e., Akshay Kumar, Ms. Ayesha Julka, Sh. Deepak Tijori and Ms. Sabeeha. On the other hand, mark of the Defendants is primarily the picture of Sh. Ravi Teja with the word KHILADI appearing at the bottom and applying the first impression test one cannot be confused with the other.

Justice Singh further found in her respective findings that the two movies are different and that one is a 1992 movie in Hindi language while the latest 2022 movie in question is in Telugu originally but also has a Hindi-dubbed version. The Court further observed that while the 1992 movie was a huge success which created a benchmark for Akshay Kumar and earned him the title of “Khiladi Kumar”, the said factor cannot give monopoly to the plaintiff production company over the word “KHILADI” for claiming infringement, especially in the absence of any registration.

Read order here.

 PILs against operations of Google Pay dismissed by Delhi High Court

The Delhi High Court has dismissed two public interest litigations (PILs) seeking to stop the operations of Google Pay in the country for alleged violations of payment systems and privacy norms.

It all started in 2019 when the Petitioner Abhijit Mishra alleged that Google India Digital Services Private Limited, which operates Google Pay, was doing “unauthorised operation” in India as it did not have the necessary permissions. His petition in the Delhi High Court called for directions for the company to stop its operations. Concerns over Google Pay collecting, storing and using the Aadhar information of the citizens and that it violated objects of the Aadhar Act, 2016 was also raised by the Petitioner.

The Delhi High Court dismissed the interim injunction on the following grounds, namely:

  • Google Pay is a mere third-party app provider
  • National Payments Corporation of India (NPCI) is the operator of the UPI system for transactions in India and the transactions carried out via UPI through Google Pay are only peer-to-peer or peer-to-merchant transactions and the company is not a “system provider” under the PSS Act, 2007
  • Third-party apps such as Google Pay are designed to provide a large customer base to participating banks
  • UPI guidelines make it exceedingly clear that data may be stored under two types, namely, ‘customer data’ and ‘customer payments sensitive data’. “While the former may be stored with the app provider in an encrypted format, the latter can only be stored with the payment services providers’ bank systems, and not with the third-party app under the multi-model application programming interface (API) approach that Google Pay has opted for.

Read order here.

Madras High Court dismisses PhonePe appeal in trademark infringement case against DigiPe 

While there have been numerous litigations initiated by digital payments system giant, PhonePe Private Limited, the latest defeat to an appeal in Madras High Court serves another major blow. It is a testament to the protection of the Defendant’s rights by the ultimate judiciary and refusal to a monopoly which Phone Pe is seeking in numerous suits across Bombay and Delhi Courts.

In the single bench earlier at Madras High Court, the single judge had said that PhonePe had failed to make out a prima facie case and that it had failed to disclose material facts concerning the dismissal of similar applications before other High Courts. Going in appeal against this order, it was held by the Division bench of Chief Justice SV Gangapurwala and Justice PD Audikesavalu that the appellant PhonePe had taken different stands before different courts on similar issues. The court noted that PhonePe was not the innovator of the” Pe” mark, and though it had claimed to have coined the distinctive “PhonePe” mark, the stand taken before the Delhi High Court was that the mark was coined by “CardPe.”

PhonePe claimed that it had coined the distinctive “PhonePe” mark in September 2015 for its services and platform and that the “Pe” in the trademark was adopted as a unique source identifier that conferred inherent distinctiveness and was automatically entitled to protection as an essential feature of the “PhonePe” trademark.

DigiPe contended that the marks “PhonePe” and “DigiPe” were dissimilar and to claim a trademark for a common mark was restricted by Section 17 of the Trademarks Act 1999. It was also submitted that the word “PhonePe” meant “on the phone” or “Phone par” and was thus generic and not descriptive. PhonePe had admitted before the Delhi and Bombay High Courts that it was not the innovator of the mark and this fact had been suppressed before the single judge. It was submitted that the balance of convenience was in favor of the Defendants as similarly placed Defendants were not restrained on account of suppression and forum-shopping by the plaintiff. Further, since the suit itself was ready for trial, DigiPe prayed for the dismissal of the appeal.

The Division Bench while dismissing the appeal by Phone Pe, found that the area of operation of both parties was different in that since PhonePe acted as a container for various payment instruments and provided services to businesses and merchants, DigiPe provided its facilities only to merchant establishments. Furthermore, PhonePe majorly lost in this appeal before the Madras High Court on the account of dissimilar and contrasting stands taken before different courts.

Read order here.

Bombay High Court refuses to stay release of Hindi film Dream Girl 2

The Bombay High Court refused to stay the release of the Ayushmann Khurrana starrer Dream Girl 2. Justice Riyaz Chagla passed the order in a Commercial IPR suit filed by writer-director Ashim Kumar Bagchi wherein he alleged that makers are passing off his registered script as their own. The film produced by Shobha Kapoor and Ekta Kapoor under the banner of Balaji Telefilms hit the theatres on the 25th of August 2023.

The Plaintiff contended as follows:

  • The film Dream Girl 2 produced by the Defendants constitutes a significant reproduction or a modified iteration of the Plaintiff’s work which amounts to violation of the plaintiff’s copyright
  • His script revolved around two broke men under severe debt, one of whom pretends to be a woman. A womanizing producer falls in love with her. The movie revolves around how he manages to get out of tricky situation
  • The Plaintiff said he had gotten in touch with Balaji for this same script in 2013 and even emailed the script to them.
  • The Plaintiff discovered the similarities between the film and his allegedly registered screenplay after watching the film’s trailer on the 1st of August 2023.

The Plaintiff therefore claimed to seek Rs. 20 crores in damages and for infringement of copyright along with permanent injunction.

Justice Riyaz Chagla after hearing the submissions from both sides stated that films should not be prevented from release at the eleventh hour and quoted as follows,

“It is worth noting that the principle of not preventing the release of any film at the eleventh hour is settled through several cases like Ravi Mallesh Bohra and Ors. v. State of Maharashtra and Ors. (2021 SCC OnLine Bom 6797), Warner Bros. Entertainment Inc. & Anr. Harinder Kohli &Ors. (ILR (2009) 1 Del 722), etc. In the case of Dashrath B. Rathod and Ors. v. Fox Star Studios India Pvt. Ltd. and Ors. ((2017) 3 AIR Bom R 447) it was observed that “The practice of parties claiming copyright infringement coming to court at the eleventh hour and expecting courts to drop all other work to listen to and decide their applications on a priority basis must be discouraged”.

Read order here.

Delhi High Court Refuses To Rely On ChatGPT Responses In IPR Suit, Says AI Can’t Substitute Human Intelligence In Adjudicatory Process

The Delhi High Court has said that artificial intelligence cannot substitute either human intelligence or humane element in the adjudicatory process, while refusing to rely on ChatGPT responses in a suit filed by French luxury company Christian Louboutin over its unique “red sole” shoes design.

This statement comes after in a first, the Punjab and Haryana High Court had used Chat GPT for deciding upon a bail plea back in March of 2023.

The Plaintiff for the luxury red sole heels maker submitted that “Red Sole Shoe” was its registered trademark in India and placed before court responses by ChatGPT with respect to its “reputation”. As the Defendant had copied all the essential and striking features of the complainant’s footwear such as ‘Red Sole’, ‘Spiked Shoe Style’, as also the prints, the imitation was not of one or two designs but of many designs. A comparative chart was also submitted to the Court.

Eventually as a part of the settlement terms, the defendant agreed to undertake that it shall not copy or imitate any of the designs of the complainant’s shoes and the court directed that in case of any breach of this undertaking, the defendant would be liable to pay ₹ 25 lakh as damages to the complainant. The Court further pressed costs of Rs. 2 lakhs on the Defendant as they had created a misrepresentation and without authorization used pictures of well-known Bollywood celebrities on its Instagram account and also displayed/sold the shoes in high-end malls.

The Court observed that ChatGPT cannot be the basis of adjudication of legal or factual issues in a court of law. The response of a Large Language Model (LLM) based chatbots such as ChatGPT, which is sought to be relied upon by the Counsel for the complainant, depends upon a host of factors including the nature and structure of query put by the user, the training data, etc. Further, there are possibilities of incorrect responses, fictional case laws, imaginative data etc generated by AI chatbots.

Read order here.