MIB Appoints Nodal Officers to Put a Lid on Film Piracy

In a significant step towards tackling film piracy, the Ministry of Information and Broadcasting (MIB) has appointed nodal officers who have been empowered to direct the takedown of pirated content from online platforms. In this article, we attempt to determine the efficacy of the mechanism of nodal officers in addressing the menace of film piracy.

Need for an effective mechanism

As highlighted by the Ministry in its press release dated November 3, 2023, the film and entertainment industry suffers losses amounting to over Rs. 20,000 crore every year on account of piracy. Due to the lack of an institutional mechanism, copyright owners are compelled to seek remedies against copyright infringement and piracy by instituting legal proceedings, which are undoubtedly time-consuming. 

Moreover, the grant of injunctions has proved futile over time, considering the tendency of infringing websites to resurface as redirect, alphanumeric or mirror websites. As a remedy against the infringement of copyright by such hydra-headed rogue websites, the Delhi High Court introduced dynamic injunctions for the first time in April 2019.[1] Going a step further, the Delhi High Court issued a “dynamic+ injunction” in August 2023, restraining the defendant websites and their redirect, alphanumeric or mirror websites from streaming not only the present works of the plaintiff studios but also their future works.[2] The same was considered necessary considering the possibility that the films and series could get uploaded on rogue websites immediately after their release.

These measures cannot do away with the need for a framework to promptly address the proliferation of pirated content, especially considering the extent of losses faced by the industry.

Prohibition of pirated films’ exhibition under the 2023 amendment

The Cinematograph (Amendment) Act, 2023 (the “Act”), which received the President’s assent on August 4, 2023, provides for the inclusion of Section 6AB. The said Section prohibits public exhibition of infringing copies of films for profit if such exhibition is either done at a place of exhibition not licensed under the 1952 Act or rules made thereunder or is made in a manner that amounts to copyright infringement under the Copyright Act, 1957, or any other law for the time being in force.

Any contravention of the above-mentioned provision will not only result in the imposition of a fine (ranging from Rs. 3 lakhs to 5% of the audited gross production cost) but also in imprisonment for 3 months, which could be extended to 3 years. This is in accordance with Section 7(1A) of the Act.

Additionally, Section 7(1B)(ii), as introduced under the 2023 amendment, specifies that the Government or its agencies can take suitable action against an intermediary for acting in the manner described under Section 79(3) of the Information Technology Act, 2000, or any other law for the time being in force. Section 79(3) of the IT Act states that an intermediary can be held liable if, despite being notified by the Government or its agency, the intermediary fails to remove or disable access to material, including information, data, or communication links, that is used by third parties to commit unlawful acts and is made available or hosted by such intermediary.

However, it is necessary to note that these amendments have not been brought into effect by the Government yet.

Appointment of nodal officers

To ensure adequate redressal of grievances pertaining to the circulation of pirated content, nodal officers have been appointed in the offices of the Ministry of Information and Broadcasting and the Central Board of Film Certification (CBFC). A total of 12 nodal officers have been appointed, out of which 9 are CBFC’s regional officers.

As per the new mechanism, a complaint can be filed by an original copyright holder or a person authorised by such holder, with the nodal officers. The Ministry’s notification provides the format in which the complaint has to be filed. On receipt of a complaint, the nodal officers are authorised to direct the intermediaries (including internet service providers, online marketplaces, search engines, etc.) to take down the pirated content from the digital platforms. After being directed to do so, the intermediaries would be required to comply with the same within 48 hours.

The format for notifying the intermediary to remove or disable access to the content has been annexed to the office order dated November 3, 2023, issued by the Ministry. This order states that the nodal officers have been nominated “for the purpose of issuing notification(s) to the intermediaries in respect to unlawful information as per clause (ii) of sub-section (1B) of section 7 of the Cinematograph Act, 1952”.

Analysis

This proactive initiative by the Ministry of Information and Broadcasting has received widespread appreciation not only from the film industry but also from everyone who is affected directly or indirectly. It is imperative to note that film piracy not only impacts the economic aspect of the industry but also discourages innovation and hampers the growth of the entertainment sector.

The concerted efforts of nodal officers, in collaboration with industry stakeholders and law enforcement, are expected to serve as a deterrent and contribute to the creation of a more secure and sustainable ecosystem for filmmakers and content creators.

While this may not help to combat piracy entirely as the content over streaming services are out of the purview of the Cinematographic Act, nevertheless, this is a terrific move to get the pirated content off the internet with less effort and on a timely manner to have a lesser impact on the business of original cinematographic content. 

References:

[1] UTV Software Communication Ltd. and Ors. vs. 1337X.to and Ors. [CS(COMM) 724/2017]

[2] Universal City Studios LLC. and Ors. vs. DotMovies.Baby and Ors. [CS(COMM) 514/2023]

Image Credits:

Photo by Leuchtturm Entertainment on Unsplash

As per the new mechanism, a complaint can be filed by an original copyright holder or a person authorised by such holder, with the nodal officers. The Ministry’s notification provides the format in which the complaint has to be filed. On receipt of a complaint, the nodal officers are authorised to direct the intermediaries (including internet service providers, online marketplaces, search engines, etc.) to take down the pirated content from the digital platforms. After being directed to do so, the intermediaries would be required to comply with the same within 48 hours.

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Data Scraping: Through the Lens of IP Law

Data scraping, i.e., the extraction of data from websites through automated processes, is used across industries for market research, consumer analytics, preparing business strategies, etc. However, its misuse leads to violation of Intellectual Property Rights (IPR), privacy laws, breach of the website’s terms of use, etc. This post seeks to give an overview of the legal intricacies involved in data scraping and explore the interplay between data scraping and IP Rights.

Towards the end of June 2023, a class action lawsuit was filed against Open AI for data scraping. It was claimed that the company’s Artificial Intelligence (AI) tools, ChatGPT and DALL-E, use “stolen private information”, thereby violating terms of service agreements along with state and federal privacy laws. Days after this suit came to be voluntarily dismissed, another class action lawsuit was instituted by the Authors Guild and renowned writers, including John Grisham, George R. R. Martin, and others, seeking an injunction restraining Open AI from infringing their copyrights. In the complaint filed before the US District Court for the Southern District of New York, it is alleged that Open AI copied the Plaintiffs’ works, which were then used to train its AI language models.

Further, concerns over AI data scraping led X (formerly Twitter) to temporarily disallow users from accessing tweets or browsing through the platform without logging in and to limit the number of posts which the users could read.

These instances reflect the upsurge in the use of data scraping in the technology-driven world and demonstrate the need to have a comprehensive legal framework to address the issues that arise from such use.

LinkedIn Data Scraping Case and User Agreement

Referring to the landmark ruling in the data scraping dispute between LinkedIn and hiQ Labs is necessary to better understand the legal intricacies involved in this domain. The key aspects of the case are discussed herein.

For the scraping of data from LinkedIn public profiles for its business, a cease-and-desist letter was sent by LinkedIn to hiQ, a data analytics company. This letter specified that future access would violate provisions of the Digital Millennium Copyright Act of 1998, the Computer Fraud and Abuse Act of 1986, the California Penal Code and the California common law of trespass, and measures were taken to block its access to LinkedIn profiles. Following this, hiQ approached the US District Court, seeking an injunction against LinkedIn in this regard. Accordingly, a preliminary injunction was issued in the year 2017, and the Ninth Circuit upheld this decision.

Thereafter, LinkedIn filed a petition before the Supreme Court seeking a writ of certiorari, challenging the said order of the Ninth Circuit. Accepting the reliance placed upon the Van Buren decision[1] with respect to the interpretation of the phrase “exceeds authorized access” under the Computer Fraud and Abuse Act of 1986, the Court remanded the matter to the Ninth Circuit for reconsideration. The said Act imposes criminal liability on anyone who “intentionally accesses a computer without authorization or exceeds authorized access”.

Reaffirming its earlier stand, in a ruling dated April 18, 2022, the Ninth Circuit observed that the “gates-up-or-down inquiry” (from the Van Buren case) envisages two situations: one when authorization is necessary and has been given (the gates are up) and the other situation when authorization is required but is not granted (the gates are down)[2]. It was held that in the case of public websites, there are “no gates to lift or lower in the first place”, and there was no violation of the provisions of the said Act. However, the Ninth Circuit clarified that even if the CFAA does not apply, causes of action such as copyright infringement, breach of contract, violation of privacy law, etc., can be pursued.

Since it could not be demonstrated that the provisions of CFAA were violated, LinkedIn based its argument on the violation of its user agreement (which expressly prohibited scraping of profiles, information, technology, etc.) and, accordingly, sought a summary judgment. In a decision dated November 4, 2022, the United States District Court for the Northern District of California held that hiQ Labs breached LinkedIn’s user agreement through the scraping of data from public profiles on LinkedIn. In the following month, the parties entered into a settlement vide a consent judgment and permanent injunction.

Data Scraping under the Indian Copyright Law

If data scraping violates the express copyrights of the website owner, the same may result in legal action. As per provisions of the Copyright Act, 1957 (“Act”), copyright subsists in original literary, dramatic, musical, and artistic works, cinematograph films and sound recordings. Here, the type of work applicable would depend on the data that is scraped. If the data is in the form of text, it could constitute literary work subject to provisions of the Act. When it comes to original literary works, the owner is conferred with the exclusive right to reproduce the work, make copies, translations, adaptations of the work, etc. Likewise, if the data that is scraped is an artwork, it could qualify as artistic work, and so on.

The exercise of such rights without a license from the owner of the copyright will lead to copyright infringement. However, there are specific scenarios where the act would not be treated as an infringement of copyright, and these scenarios are listed in Section 52 of the Act. For instance, fair use of work (for private use, criticism, review, or reporting of current events) is excluded from the purview of infringement. So, it follows that data scraping would be compliant with copyright law if done in the manner and for any of the purposes enumerated under said provision.

In the case of Eastern Book Company & Ors. v. DB Modak & Anr.[3], the Appellants approached the Supreme Court alleging that the copying of the case reports included in their journal, Supreme Court Cases (SCC), onto the Respondents’ CD-ROMs amounted to copyright infringement under Section 51 of the Act. It was contended that the said case reports were the Appellants’ original literary works, and they had the exclusive right to make copies of the said works under Section 14. 

The Court noted that a joint reading of Section 2(k), proviso (d) to Section 17 and Section 52(1)(q)(iv) makes it clear the reproduction or publication of any judgment or order of a Court, Tribunal or other judicial authority would not constitute an infringement of the government’s copyright unless the Court, Tribunal, or judicial authority prohibits the same.

After perusal of the inputs made by the Appellants, including the addition of the Section or rule numbers, completing or correcting case names and citations, etc., the Court held that the required standard of creativity is not fulfilled. It was observed that, in order to establish a copyright, the applicable creativity standard is “not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required”. However, the Court acceded that the Appellants had copyright with respect to inputs pertaining to the depiction of judges’ opinions as dissenting/ partly dissenting, etc.

Theft of Trade Secrets

Utilising data scraping to gather confidential information about competitors to gain a competitive advantage would amount to the misappropriation of trade secrets by way of industrial espionage. In 2017, Uber’s former employee, by way of a letter, accused Uber of stealing trade secrets and using data scraping techniques to obtain information through its competitors’ platforms.[4] This is an instance from the United States. However, there is no specific legislation governing trade secrets in India, where such rights can be enforced with the help of principles of equity or common law action for breach of confidence. If offences under criminal law are involved, one can seek relief under the Indian Penal Code, 1860 and the Information Technology Act, 2000.

The Way Forward

The future of data scraping as a legal practice in India is still up in the air because neither the enacted laws nor the proposed measures directly make any reference to it. Hence, the stakeholders must ensure that they carefully assess the terms of use, IP implications, etc. Though one can always follow best practices to avoid legal pitfalls, the same doesn’t negate the need for clear rules governing the protection of intellectual property and the avoidance of dishonest or harmful behaviour in data scraping. It will be interesting to see what the future holds, considering the evolving discussion around these topics.

References:

[1] Van Buren v. United States, 141 S. Ct. 1648, 1649 (2021)

[2] https://casetext.com/case/hiq-labs-inc-v-linkedin-corp-5

[3] (CA No.6472 of 2004)

[4] https://www.nytimes.com/2017/12/15/technology/uber-letter-illegal-spying.html

Image Credits:

Photo by Lewis Kang’ethe Ngugi on Pexels

If data scraping violates the express copyrights of the website owner, the same may result in legal action. As per provisions of the Copyright Act, 1957 (“Act”), copyright subsists in original literary, dramatic, musical, and artistic works, cinematograph films and sound recordings. Here, the type of work applicable would depend on the data that is scraped. If the data is in the form of text, it could constitute literary work subject to provisions of the Act. When it comes to original literary works, the owner is conferred with the exclusive right to reproduce the work, make copies, translations, adaptations of the work, etc. Likewise, if the data that is scraped is an artwork, it could qualify as artistic work, and so on.

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Humans of Bombay Case: No Monopoly Over Storytelling Idea

In its order dated October 11, 2023, the Delhi High Court dispelled all speculations, emphasising that in the current case, the primary focus was on a storytelling platform (the idea), and no monopoly could be claimed over the idea.[1] Therefore, there can be no restraint on such a platform being run. Nevertheless, the Court clarified that the expression of ideas and the content forming that expression fall under the purview of copyright.

Last month, the plaintiff, Humans of Bombay Stories Pvt. Ltd., filed a suit before the Delhi High Court alleging that the defendants replicated its stories, thereby infringing upon the plaintiff’s copyright over its content, including photographs, literary works, films, and creative expressions published on its website and social media platforms. In its interim order dated September 18, 2023, the Court observed that prima facie, there was “substantial imitation”, and in some instances, the images were “identical or imitative” (click here to read our detailed analysis on the subject).

When the matter came up for hearing on October 11, 2023, the defendants contended that the plaintiff’s platform was not unique and listed down a number of platforms (including Humans of New Amsterdam, Humans of Delhi, etc.), all of which were based on that of Humans of New York. With respect to the replication of images, it was maintained that the images were received from the subjects themselves. Additionally, the defendants presented a series of screenshots depicting that the plaintiff had copied certain images posted by the defendants on their website.

The Court extracted relevant paragraphs from the judgments of the Supreme Court in Eastern Book Company and Ors.  v. D.B Modak and Anr.[2] and R.G. Anand v. M/s. Delux Films and Ors.[3] to clarify that copyright law protected not the original idea but the expression of thought, the imitation of which would constitute copyright infringement under Section 51 of the Copyright Act, 1957. Hence, the Single Judge Bench of Justice Prathiba M Singh stated that there could be “no monopoly” over the running of the storytelling platforms. At the same time, the creative ways utilised by the platforms to communicate and disseminate the stories of the individuals would constitute the “expression” that is protected under copyright law.

It was observed that there could be various justifications for the parties to replicate each other’s images, such as “common source, common subject, common settings where the image is clicked etc.” Further, the Court cleared the air by specifying that copyright in the photographs and videos would “vest” in the platform which commissioned such work. However, when it came to photographs of individuals from their “own private collection”, the Court held that neither platform could claim copyright. With this, both the platforms were restrained from using each other’s copyrighted works, including “(1) commissioned photographs; (2) literary works such as interviews scripts and original pieces written by authors on the respective platforms; (3) videos that may have been commissioned by the platforms themselves; (4) the manner of presentation of the stories published by the platforms in respect of a particular subject”.

While this may not be considered a landmark judgment, given the exceptional nature of the case involving influential social media personalities, it does provide much-needed clarity and paves the way for the exploration of numerous concepts that people may have been hesitant to pursue. Although the principles of copyright law are well-established in terms of defining copyright subject matter, this case was more a result of misunderstandings caused by public discussions and opinions without a complete understanding of the facts involved.

References:

[1] Humans of Bombay Stories Pvt. Ltd. v. POI Social Media Pvt. Ltd. & Anr. [CS(COMM) 646/2023]

[2] (2008) 1 SCC 1

[3] (1978) 4 SCC 118

Image Credits:

Photo by Bulat Silvia on Canva

The Court extracted relevant paragraphs from the judgments of the Supreme Court in Eastern Book Company and Ors.  v. D.B Modak and Anr.[2] and R.G. Anand v. M/s. Delux Films and Ors.[3] to clarify that copyright law protected not the original idea but the expression of thought, the imitation of which would constitute copyright infringement under Section 51 of the Copyright Act, 1957. Hence, the Single Judge Bench of Justice Prathiba M Singh stated that there could be “no monopoly” over the running of the storytelling platforms. At the same time, the creative ways utilised by the platforms to communicate and disseminate the stories of the individuals would constitute the “expression” that is protected under copyright law.

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Decoding the Case: Humans of Bombay Vs People of India

In a social media post that now has over 4 million views, Brandon Stanton, creator of Humans of New York, called out Humans of Bombay for filing a lawsuit for what he has “forgiven” them for, indicating his storytelling model being adopted by the latter. Responding to Stanton’s post, the Indian photoblog issued a statement to clarify the matter and point out that its lawsuit did not concern the concept of storytelling but was instituted to protect its intellectual property rights, specifically copyright.

The Controversy

Stanton’s statements have been widely quoted by several media houses and influencers leading the public to form strong opinions on the matter. Overlooking the issues involved in the case before the Delhi High Court, the media has focused on the ownership of the “Humans of .…” photoblog concept, with many hailing it as Stanton’s work and accusing Humans of Bombay of copying the concept and taking legal action against People of India for doing the same.

This article aims to demystify the core issues surrounding the controversy and shed light on the associated IP rights.

Battle of Titles: Humans of New York Vs. Humans of Bombay

A quick search conducted in both the United States Patent and Trademark Office (USPTO) registry and the Indian Trademark Registry reveals that a trademark has indeed been registered under Stanton’s name for “Humans of New York” in the United States. However, this does not hold for India.

Given that trademark rights are inherently territorial, it becomes evident that “Humans of New York” will not have grounds to file a trademark infringement case against “Humans of Bombay” in India; however, a passing-off and misrepresentation case can be made out, if required.

Considering that the term “Humans of….” may be considered a descriptive term, it will be interesting to see how the courts interpret such a case if contested.  

Storytelling Concept / Business Idea

Since 2010, Humans of New York has been a storytelling platform which showcases the stories of individuals who share brief interviews that delve into their life experiences, the challenges they’ve confronted, and the steps they’ve taken to surmount these challenges.

It is important to mention here that copyright law doesn’t protect an idea; instead, it is the expression of an idea that is protected. Further, copyright does not protect a business idea because, if done, it will create a monopoly in the market and stop any third person from creating/operating a business.

Therefore, even though the concept may have been introduced through “Humans of New York”, no copyright over such a concept can be claimed. 

The Actual Issue: Humans of Bombay Vs. People of India

The plaintiff, Humans of Bombay Stories Pvt. Ltd., owns a platform through which it shares the life stories of various individuals. These stories are published as posts, write-ups, interviews, etc.

It came to the plaintiff’s notice that an Instagram handle (@officialpeopleofindia) operated by the defendant was hosting content identical to that of the plaintiff, including images and videos. Further, they’ve been interviewing the same subjects whose stories were published by the plaintiff.

Hence, the plaintiff filed a suit before the Delhi High Court on September 14, 2023, seeking an injunction against the defendants on account of copyright infringement of its content, including photographs, literary works, films, and creative expressions published on its website and social media platforms. In support of its contentions, the plaintiff attached a series of screenshots of social media posts and photographs as annexures to its plaint, to indicate the imitation.

The plaintiff seems to have endeavoured to address the issue amicably before taking recourse under the law.

Replication of Stories  

The plaintiff submitted that the defendants replicated its stories, which amounted to copyright infringement. Additionally, in its plaint, the plaintiff averred that the similarities in the content constituted passing off and unfair competition, considering that the defendants have been banking on the goodwill that has been “painstakingly built by the plaintiff”.

Referring to the efforts that go into storytelling, the plaintiff asserted that its team is engaged in conducting substantial research, approaching several subjects, converting stories into audio-video works and uploading them on the website and social media platforms.

Prima Facie Case of Imitation and Court’s Order

With respect to the lawsuit, the Court directed that a summons be issued to the defendants, also requiring submission of the written statement within 30 days.[1]

Upon perusal of the annexures attached to the plaint, the Court observed that prima facie, there was “substantial imitation”, and in some instances, the images were “identical or imitative”. With this, the Court directed that notice be issued to the defendants that the application for interim relief would be considered on the next date of hearing.

The matter will be heard next on October 11, 2023.

Takeaways

A mere glance at the posts published on the Instagram handle of People of India readily reveals the striking similarities and, in certain instances, outright replication of House of Bombay’s content. As mentioned above, the Delhi High Court, in its admission dated September 18, 2023, acknowledged the existence of a prima facie case for imitation.

While it appears to be a straightforward case of potential copyright infringement, if proven, a more substantial issue looms regarding the ownership of the business concept over “Humans of ….”. This raises questions about ethical considerations, originality, and misrepresentation within the broader context.

References:

[1] Humans of Bombay Stories Pvt. Ltd. v. POI Social Media Pvt. Ltd. & Anr. [CS(COMM) 646/2023 and IA 18038-18042/2023]

Image Credits:

Photo by Georgescu Adrian’s Images: https://www.canva.com/photos/MAFB3Sc1CqU-man-doing-live-video-with-phone-with-stabilizer-in-ny/

A mere glance at the posts published on the Instagram handle of People of India readily reveals the striking similarities and, in certain instances, outright replication of House of Bombay’s content. As mentioned above, the Delhi High Court, in its admission dated September 18, 2023, acknowledged the existence of a prima facie case for imitation. While it appears to be a straightforward case of potential copyright infringement, if proven, a more substantial issue looms regarding the ownership of the business concept over “Humans of ….”. This raises questions about ethical considerations, originality, and misrepresentation within the broader context.

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Gems vs James Bond: Delhi High Court Rules in Favour of Cadbury

In a long-pending case of trademark infringement dispute between Mondelez Indian Foods Pvt. Ltd, formerly Cadbury India Limited (Plaintiff) and Neeraj Food Products (Defendants), the Delhi High Court issued a permanent and mandatory injunction against the Defendant for trading “James Bond”- a chocolate product which bore deceptive similarity to Cadbury’s trademark “Gems”. The Court also imposed a fine of INR 15 Lakhs on the defendant for the copyright infringement.

The lawsuit was filed in August 2005 against the defendant, the sole proprietorship of Mr. Charan Das. Plaintiff 1– Cadbury India Ltd. and Plaintiff 2– Cadbury Schweppes Overseas Limited claimed ownership of the mark ‘CADBURY GEMS’ or ‘GEMS’. The Plaintiffs claim that the defendant launched a chocolate product under the name ‘JAMES BOND’ with the identical colour scheme, layout, and arrangement as the ‘CADBURY GEMS’ or ‘GEMS’ products.

Further, the Plaintiffs also claimed that the product “James Bond” also stood in infringement of the copyright and trademark registration, under its former name, Hindustan Cocoa Products Ltd., bearing registration numbers A-50680/90 and A-49975/89 in respect to a character referred to as “Gems Bond”, often used in various marketing campaigns of their product.

                                           Figure: Packaging of Cadbury Gems and James Bond[1]

Hence, the lawsuit sought a permanent and mandatory injunction and damages for trademark and copyright infringement, passing off, unfair competition and other relief.

The Court observed that the packaging of the Plaintiffs’ ‘GEMS’ product is very unique, with illustrations of colourful button chocolates on a blue/purple base with the mark ‘GEMS’ depicted in a number of colours and a splash in the middle, which is very well known to the young and the old alike.

Numerous “GEMS” advertisements feature the phrase “GEMS BOND,” and some examples have also been made public. The defendant’s packaging features colourful button chocolates and the mark “JAMES BOND”/”JAMEY BOND” with the same blue/purple foundation. The trademark “GEMS” appears on a brown background on both the plaintiff’s and the defendant’s products. The label and packaging for the Plaintiffs’ product share the same colour palette as the Defendant’s product. Additionally, the marks are misleadingly and confusingly similar. Therefore, the court categorised the situation as an instance of res ipsa loquitur.

The Court referred to the Supreme Court’s decisions in Corn Products Refining Co. v. Shangrila Food Products Ltd., (1960) 1 SCR 968 and Parle Products (P) Ltd. v. J.P. & Co., Mysore, in which the contention of the test of infringement and deceptive similarity of competing marks (1972) 1 SCC 618 was settled, wherein it was observed that “the overall structural and phonetic similarity and the similarity of the idea in the two marks is reasonably likely to cause a confusion between them and the Court has to see the similarities and not the dissimilarities.”

The Court also placed reliance on the decision of ITC Ltd. v. Britannia Industries Ltd. 2016 SCC OnLine Del 5004, in which it was observed that “Where the product is eatable like a biscuit, the colour and the colour scheme of the packaging play an important role in the consumer making an initial choice and in enabling a discerning consumer to locate the particular brand of a manufacturer.”

Further, while discussing the concept of ‘initial interest in the same judgment, the Court relied on Baker Hughes Limited v. Hiroo Khushalani, while observing, “In some cases, however, it is also possible that a purchaser, after having been misled into an initial interest in a product manufactured by an imitator, discovers his folly, but this initial interest, being based on confusion and deception, can give rise to a cause of action for the tort of passing off as the purchaser has been made to think that there is some connection or nexus between the products and business of two disparate companies.”

However, that may not be entirely true when it comes to products like biscuits. The packaging of a biscuit does become associated with the manufacturer or brand. The colour of the wrapper would certainly play an important role.

In the present case, the Court opined, inter alia, that the product- ‘GEMS’ is also usually liked and consumed by small children in both urban and rural areas. Therefore, in such a case, the test shall not be limited to that of absolute confusion, but even the likelihood of confusion shall be deemed sufficient. Hence, the product’s layout and the colour combination of the packaging play a vital role when making a purchase. Moreover, chocolates are not merely sold in retail stores or outlets but also at roadside shacks, paan shops, patri vendors, kirana stores and stalls outside schools, etc. Thus, considering that the class of consumers the product is targeted at is children, the likelihood of confusion stands high.

In conclusion, it can be inferred by the Delhi High Court’s decision that the test for the likelihood of confusion stands on several factors, including the product category in dispute and the consumer demographic it appeals to. As observed by the Court, ‘almost everyone’s childhood is associated with Cadbury Gems’; the product was popular amongst many consumers of all ages and across socio-economic backgrounds. Further, the strikingly similar colour scheme of the packets and layouts and the phonetic sounds of the two products were enough to inspire a “likelihood of confusion” at the point of purchase by the consumer, which led the Court to take a firm stand in favour of the Plaintiff.

References: 

[1] https://www.livelaw.in/pdf_upload/pms26072022sc3932018182501-427663.pdf

Image Credits: Photo by Hans Schwarzkopf from Pixabay 

It can be inferred by the Delhi High Court’s decision that the test for the likelihood of confusion stands on several factors, including the product category in dispute and the consumer demographic it appeals to. As observed by the Court, ‘almost everyone’s childhood is associated with Cadbury Gems’; the product was popular amongst many consumers of all ages and across socio-economic backgrounds.

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