VOL X                                                  ISSUE NO. 25                                        December 11, 2018


In This Issue

India: Digital Platforms on Delhi High Court’s radar yet again: Websites barred from circulating report disparaging Kamdhenu TMT Steel Bars

Recently, an order was passed by the Delhi High Court wherein it restrained Jindal Steel and Power Ltd, as well as various platforms such as Facebook and YouTube from "displaying, disseminating or propagating" a report by the infrastructural think tank First Construction Council, (FCC) regarding TMT steel bars, which bore the Kamdhenu Trademark.

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India: ‘Chota Bheem’ goes to Delhi HC over sale of fake products

Green Gold Animation, the company which owns the popular cartoon-series ‘Chhota Bheem’ has moved to the court seeking action against two sellers, Tech Connect Retail and Acme Housewares for being infringing their trademark and selling counterfeit products, including bed sheets, pillow covers, water bottles etc with the cartoon’s characters on them.

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India: Fraudulent sites biggest challenge to digital India scheme

Recently, a website ‘www.ujwalayojana.com’ was in the news for defrauding customers by providing fake LPG distributorships. With one letter different from the PMs Flagship scheme ‘Ujjwala Yojana’, this is one of the many web domains with very similar names to actual government schemes and have been caught for their fraudulent acts.

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India: Protection of Commercial Cinematographic rights under Copyright Act 1957

Recently, the Madras High Court in the case of Kajal Aggarwal vs The Managing Director gave a decision based on the infringement of Cinematographic rights of an artist under a contract which is not enforced under Copyright Act, 1957 in India. The Court held that V.V.D.& Sons Pvt. Ltd were the first owner of an advertisement featuring actor Kajal Agarwal and rejected the actor’s plea that the company should be restricted to use the commercial only for one year.

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India: Digital Platforms on Delhi High Court’s radar yet again: Websites barred from circulating report disparaging Kamdhenu TMT Steel Bars

 

Source: www.delhihighcourt.nic.in

 

 

Recently, an order was passed by the Delhi High Court wherein it restrained Jindal Steel and Power Ltd, as well as various platforms such as Facebook and YouTube from "displaying, disseminating or propagating" a report by the infrastructural think tank First Construction Council, (FCC) regarding TMT steel bars, which bore the Kamdhenu Trademark. This report, titled ‘Is India’s 5.7 million Infrastructural Investment at risk?’, stated that TMT bars with the Kamadhenu TM had failed a quality test by the FCC.

 

The matter was raised by Kamdhenu when it first became aware of leaflets by Jindal Steel which claimed that TMT bars had failed the quality test of FCC. Kamdhenu had alleged in the suit that the FCC might have come to the said conclusions in the impugned after testing counterfeit products of Kamdhenu, procured at the instance of Jindal Steel.

 

The steel company also alleged in its suit that there was a likelihood that FCC might have procured counterfeit Kamdhenu TMT steel bars as its sample from market and prepared a fake test report at the instance of JSPL.[1]

 

The court therefore directed all social media platforms to take off the all such defamatory/disparaging videos/ leaflets/ pictures and other such content that is misleading and is already being circulated over the internet[2] and the impugned report from their sites, and has further issued a notice to Jindal Steel, Facebook, FCC, YouTube and WhatsApp to give their stands on Kamdhenu’s claims alleging defamation. The matter is listed next on November 15, 2018.

 

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[1]https://timesofindia.indiatimes.com/business/india-business/hc-restrains-jspl-fb-youtube-from-propagating-report-on-kamdhenu-tmt-steel-bars/articleshow/66526497.cms 
[2]https://www.latestlaws.com/latest-news/hc-restrains-jindal-other-social-media-websites-from-propagating-report-disparaging-kamdhenu-tmt-steel-bars/ 

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India: ‘Chota Bheem’ goes to Delhi HC over sale of fake products

Source: www.greengold.tv

Green Gold Animation, the company which owns the popular cartoon-series ‘Chhota Bheem’ has moved to the court seeking action against two sellers, Tech Connect Retail and Acme Housewares for being infringing their trademark and selling counterfeit products, including bed sheets, pillow covers, water bottles etc with the cartoon’s characters on them. It has further been alleged by Green Gold that they have been selling the goods on all e-commerce platforms.

 

In a statement made to the Economic Times, both the defendant companies have tried to evade responsibility stating that they are mere resellers of products manufactured by other manufacturers. The matter has now been posted to November 13 for further hearing.

 

Sale of fake products online has been a widespread problem faced by e-commerce platforms across India. In fact, Skechers, a US footwear company had filed a case against Flipkart for the sale of counterfeits on their sites. Earlier, these companies used to evade responsibility claiming the exemption under S.79 of the IT Act claiming that they are mere intermediaries. However, this position has changed after the Christian Loboutin v. Nakul Bajaj judgment, where the Delhi HC held that online platforms which actively perpetrates the sale of trademark infringing products cannot claim the exemption of being an intermediary.

 

Even though no online platform has been made a part of the matter by Green Gold as of now, it seems likely that they may be incorporated in course of further proceedings.

 

 

 

 

 

 

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India: Fraudulent sites biggest challenge to digital India scheme

 

  

 

Source: www.india.gov.in

 

 

Recently, a website ‘www.ujwalayojana.com’ was in the news for defrauding customers by providing fake LPG distributorships. With one letter different from the PMs Flagship scheme ‘a, this is one of the many web domains with very similar names to actual government schemes and have been caught for their fraudulent acts.

 

 

 

The Ministry of Electronics and Information Technology has been receiving multiple grievances with regards to such sites, and each are now being dealt with on a priority basis. From these complaints the ministry identified six common hi-tech modus operandi which are increasingly being employed. This includes (i) using names similar to government scheme websites, (ii) using logo of government schemes with photos of the PM. (iii) providing links to prove authenticity (iv) alluring people by providing fake job offers and appointment letters (v) Extorting money (vi) Targeting newly launched government schemes and capitalizing on the people’s lack of awareness of the same.

 

The ministry has directed all other ministries to ensure that their programs are not being misrepresented online. They have also suggested awareness schemes, identification of fake schemes, lodging FIR’s and informing organizations like the National Internet Exchange of India regarding such incidents.

 

 

 

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India: Protection of Commercial Cinematographic rights under Copyright Act 1957

 

  

Source: www.hcmadras.tn.nic.in

 

Recently, the Madras High Court in the case of Kajal Aggarwal vs The Managing Director gave a decision based on the infringement of Cinematographic rights of an artist under a contract which is not enforced under Copyright Act, 1957 in India. The Court held that V.V.D.& Sons Pvt. Ltd were the first owner of an advertisement featuring actor Kajal Agarwal and rejected the actor’s plea that the company should be restricted to use the commercial only for one year.

 

Brief Facts

  • Kajal Aggarwal (hereinafter referred to as ‘the Plaintiff’) is a renowned actress in India.

  •  V.V.D. & Sons Pvt. Ltd (hereinafter referred to as ‘the Defendant’) approached the Plaintiffs to support their products to be marketed.

  • The terms of promotional participation were finalized after mutual negotiations between the parties. The Plaintiff agreed to subject herself to be available to shoot the required materials to use the same for the advertisements of the Defendant.

  • The parties entered into the agreement on December 29, 2008.

  • The Plaintiff alleged that the Defendant was to use the advert for only a year but had done so beyond that period from 2008. Aggrieved by the act, the Plaintiff filed a suit before the Madras High Court (hereinafter referred to as ‘the Court’)

Issues

  • Whether the Defendant was restricted to use the profile of the Plaintiff only till the period authorized in the agreement?

  • Whether the Defendant exceeded the commitment and violated the condition in advertising their products with the appearance of the Plaintiff's profile to cause prejudice?

  • Whether or not the Defendant is the owner/author of the copyright in the commercial (cinematographic) film as per Section 17 of the Copyright Act, 1957?

  • Is the term of the copyright in the commercial (cinematography) film, 60 years as stipulated under Section 26 of the Copyright Act?

Plaintiff’s Contentions

  • It was submitted that the Plaintiff completed the shooting and photo sessions for two full days.

  • However, it was alleged that the Defendant did not keep up their commitment and violated the terms on which the Plaintiff agreed to extend her profile for the promotion of their business.

  • It was also alleged that all the terms, which were agreed upon, were not incorporated with the full text in the agreement prepared and brought with the signature of the Defendant to subscribe the signature of the Plaintiff.

  • It was submitted that the Plaintiff made specific protest to incorporate all the agreed terms.

  • It was further alleged that the Defendant had included by hand written words in clause 2 of the terms of agreement to restrict the advertisements to the geographical limits of Tamil Nadu and Andhra Pradesh only.

  • It was promised by the Defendant to prepare and send the proper text with agreed conditions, but, they failed to do so.

  • It was contended that the Defendant started using the advertisement materials with Plaintiff’s profiles for their product’s marketing even before furnishing the corrected agreement and the subscription of the signatures on either side and on coming to know the same, the Plaintiff had protested, and the Defendant promised to rectify the issue.

  • It is contended that despite knowing, the Defendant continued to exploit the popularity of the Plaintiff through their advertisement materials without giving regards to the terms of agreement agreed to between the parties.

Defendant’s Contentions

  • It denied breaching the agreement between him and the Plaintiff regarding the promotion of the products.

  • It was alleged that when the ad film for coconut oil was made, the Plaintiff was only an ordinary model and she became an actor in films later.

  • It was submitted that the Plaintiff was paid remuneration a of INR 3,00,000 (USD 4292) for the ad film. It is denied that any geographical limit was agreed upon for advertising the product using the Plaintiff’s name, image, etc.

  • It also denied promising to prepare and send a revised text of the agreement.

  • It submitted that it had been using the advertisement material in accordance with the agreement and not in violation to the terms of the agreement.

  • It also submitted that it holds copyright over the ad film and all rights in the said film vested with the Defendant. The Plaintiff has no right over the same, since she was paid the sum demanded by her for acting in the said ad film.

Court’s Decisions

  • The Court noted that with respect to an Ad film for promoting the products of the Defendant, the Plaintiff and the Defendant entered into an agreement on December 29, 2008. Also, it is not disputed also that the Plaintiff has been paid a sum of INR 3,00,000 (USD 4292) for completing the shooting of the Ad film.

  • Regarding the Defendant being the first owner of the copyright, the Court held that ‘the Defendant being the employer and having utilized the services of the Plaintiff for promoting their products through the ad film, the Defendant shall be the first owner of the copyright thereof in the absence of any agreement to the contrary.

  • On the question of the period for which the advert could be used, the Court held that ‘A person who becomes the first owner of the copyright for his entire work, has been conferred with a statutory right for a period of 60 years over the cinematograph of the film. This statutory right cannot be taken away by a performer in the cinematograph film by virtue of an agreement. Hence, we hold that the Defendants entitled to exploit the work for the entire term prescribed under Section 26 of the Copyright Act and is not restricted for a period of one year by the agreement.’

  • Further rejecting the argument of compensation for using the promotional material beyond the period of one year, the Court held that ‘there are absolutely no materials for this Court to award compensation to the Plaintiff in this case. Once she consented to incorporate her performance as an action in the film, she cannot stop the Defendant from enjoying the right of producer.

 

 

 

 

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