Wednesday, October 17, 2012

Delhi High Court Restrains use of the mark “Bata” in a Defamatory Song

In a 66-page judgment delivered on October 15, 2012, a Learned Single Judge of the Delhi High Court has restrained the makers of the movie “Chakravyuh” from “releasing, transmitting, distributing, exhibiting, performing or communicating to the public by any means or technology, aural or audio visual performance of the impugned song “Mehngai using  the name of the plaintiff therein till final disposal of the suit.”

The relevant extracts of the lyrics of the song in which the name “Bata” is used is as follows:

“Birla Ho Ya Tata Ambani Ho Ya Bata,
Apne Apne Chakar Mein Desh Ko Hai Kata
Birla Ho Ya Tata Ambani Ho Ya Bata
Apne Apne Chakar Mein Desh Ko Hai Kata
Are humre hi khoon se inka engine chale
dhakadhak, Aam admi ki jeb ho gai hai safa
chat, aam aadmi ki jeb ho gai safachat.”

The lyrics refer to corporate corruption in the country and name prominent Indian business houses, including popular footwear maker “Bata”. Among other things, Bata filed a “quia timet”/pre-emptive action suit for infringement of its trademark/name, passing off and defamation. Summing up the issues in the case, the Court noted as follows:

“15. In the facts of the present case, the core issue involved is whether the defendants have transgressed the right to freedom of expression and speech through the song “Mehngai”. Another important question to be answered by this Court in the present case is whether pre-emptory injunction can be granted by the Court to restrain the defendant from transmitting and exhibiting the said song “Mehngai”   or the only remedy is to claim damages after proving such defamation in trial.”

Citing decisions of the Supreme Court, the Court noted that motion pictures had a deeper impact on its audience that books and that the freedom of expression under Article 19(2) was not absolute. Applying the principles enumerated in SC’s decisions and those of the Delhi High Court, the Court observed thus in Para 25 on the facts of the case:

“25. Applying the above enunciated principles, in my considered view in the present case in the song in question, the defendants  have used expressions that are offensive towards the plaintiff.  The tenor of such expressions   suggests that the engines of the industries of the plaintiff are run by the blood of the common public.  

Such expressions undoubtedly have the propensity to cause lasting damage to the well established reputation of the plaintiff and in my view the use of the said expression would certainly harm and jeopardize the credibility and reputation of the plaintiff in the estimation of the common public. This Court also cannot find any justification for the use of such derogatory expressions   in the song and such expressions prima facie cannot stand the test of either fair comment or based on truth or in the public or societal interest.”

The context of the Defendants’ contention that the movie had been cleared by the Censor Board and that no objections were raised by the Plaintiff on the Censor Board’s decision to clear the movie along with the allegedly defamatory song, the Court observed thus:

“In my considered view, none  of the above contentions   raised  by the counsel  for the  defendants  could   justify the  act of the defendants  in using  the name  of the plaintiff   with such a disparagement  to the extent of attributing that the plaintiff  has looted  the country and  that they are running their industry by the  blood of the people.  

This is no doubt a serious attack on the reputation and goodwill of the plaintiff   and with the use of such defamatory expressions the defendants cannot take shelter by using the same with a disclaimer.  Even otherwise it is  inconceivable that the   use of a  disclaimer    in any  way can help so  far transmitting  of the said song on You-Tube, through CDs or other media sites is concerned as  the  disclaimer will confine to the viewers of the film and not to all those who will merely listen the song.”

On whether Bata’s suit was barred by the Cinematographic Act which governs grant of viewership certification to cinematograph films, the Court’s views are definitely worth reading:

“27. This court also does not find any merit in the contention  raised  by the counsel  for the defendant  that the remedy of the plaintiff to file a civil suit is barred  due to the remedy  available  to the plaintiff under Section   6 of the Cinematographic Act 1952.  There is no provision in the  Cinematographic Act 1952 which  excludes the jurisdiction of the civil court to try and entertain a civil suit.

It is a settled legal position that a provision of law ousting the jurisdiction of the civil court must be strictly construed and exclusion of the jurisdiction cannot be easily inferred unless such exclusion is either explicitly expressed or clearly implied.  This court also does  not find   any specific provision  in the Cinematographic Act which  can  grant  an urgent and immediate  relief to the grievance of an individual  in a case  like  the present  where  the grievance  of the individual  pertains  to intending loss of its reputation  and goodwill. 

The entire scope of Cinematographic Act is to regulate the exhibition of films for evolving and entertaining the society through  the film makers, exhibitors and the connected  team  with such activities  and define the role of the Central Board of Film Certification  and of the Central Government. 

The Act does not specifically provide for any remedy or grant any such relief to redress the grievances of the individuals or private citizens and institutions etc. against screening  of any film or objectionable scene in the films Ordinarily, the courts do not interfere with the decision taken by  expert bodies, but that would not  imply  that the citizen whose fundamental rights are violated is left  remediless and that the recourse to approach  the court to  challenge the decision of the expert body is not available”

Para 30 of the judgment for me is a must read in order to understand the balance to be struck between artistic license and responsibility:

"30. At omega, this court would like to observe that cinema is not only an entertainment industry but also a potent weapon for social change. From a six to a sixty year old, everyone derives and takes home something from a movie and it has the power to evoke emotions and shape the outlook of the common man towards various issues like none other. The film makers have since yore mirrored social ills plaguing the society which movement continues till date with igniting the minds and being responsible for various social movements leading to monumental changes in the social setup.

However with this responsibility to bring to the public domain the realities of our diverse nation, there comes a duty to act cautiously not to make inroads in the lives and dignity of people and institutions alike in the garb of being the messiahs of social change. Thus the film makers have no unbridled right   to tarnish the image and reputation of any individual or institution, that too in the absence of any foundation  for  the same. One cannot be oblivious of the fact that the  main stay of the film industry is not only entertainment but also commercial gains  and  in  this pursuit to  earn huge profits the cinema makers  have no  right to trample upon,disrepute or disparage  the reputation of others.”

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