Tag: copyright

-Report by Khushi Neb

The Delhi High Court in the case of TATA SIA AIRLINES LIMITED versus SHENZHEN COLOUR SPLENDOUR GIFT CO LTD reiterated that

“when a person uses another person’s “well-known trade mark‟, he tries to take advantage of the goodwill such a “well-known trade mark” enjoys. Such an act constitutes as unfair competition. It also causes dilution of a “well-known trade mark‟ as it loses its ability to be unique and distinctively identified and distinguish as one source and there is a consequent change in perception which reduces the market value or selling power of the product bearing the well-known trade mark”.

FACTS

The plaintiff was incorporated in the year 2013 as a joint venture between TATA Sons Limited and Singapore Airlines Limited, with TATA Sons holding the majority stake of 51% (Fifty-One Percent) in the plaintiff company that operates its full-service airlines for domestic and international destinations. As of the date of filing the suit, the plaintiff has been serving thirty-six destinations with over two hundred flights a day since 09th January 2015 with all the aircraft bearing the ‘VISTARA Marks’ of the plaintiff. The plaintiff has applied for and is the registered proprietor of the ‘VISTARA Marks’ in several classes in India. In July 2020, the plaintiff received information about the sale of keychains and baggage tags
bearing the ‘VISTARA Marks’ in the aubergine and gold color combination, which were being sold on a Chinese e-commerce platform, namely AliExpress, by the seller, which is the defendant in the present suit. It is the case of the plaintiff that despite the e-commerce platform based mostly in China, the website contained several listings by the defendant of infringing baggage tags and keychains bearing the ‘VISTARA Marks’ without the authorization of the plaintiff which was eligible for shipping to India.

CONTENTIONS OF PLAINTIFF

The plaintiff‟s ‘VISTARA Marks’ by the defendant vis-à-vis the sale of baggage tags and keychains are bearing not only the same trademarks but also the same trade dress as that of the plaintiff, which amounts to infringement, passing off, dilution and unfair competition. The wordmark of the plaintiff, that is ‘VISTARA’ was declared to be a “well-known
trade mark” as defined under Section 2(1)(zg) of the Trade Marks Act, 1999 by this Court in a decision dated 05th August 2019 in TATA SIA Airlines Limited v. M/s Pilot Aviation Book Store & Anr., CS(COMM) 156 of 2019. The knowledgeable attorney for the plaintiff further argues that there is a high likelihood of confusion due to the public’s adoption of the same marks and the plaintiff’s trade dress, suggesting that the two parties may be connected.

Given that the plaintiff’s “VISTARA Marks” are used for travel-related purposes, the same is an arbitrary adoption, and the defendant’s use of identical marks and trade dress is not justified because the word is not frequently used in
dictionaries. By utilizing similar marks and trade dress, there is a defendant for selling luggage tags and keychains. anxiety about safety and security regarding airports and on the aircraft. The learned counsel for the plaintiff submits that where the defendant, despite having been served with the injunction order, chooses not to contest the suit, the same fortifies that it is indulging in the activities complained of by the plaintiff in the plaint. In support, he places reliance on some judgments.

COURT’S DECISION

The court ruling in favor of the plaintiff stated:

“The use of the “VISTARA Marks‟ is not only amounts to infringement and passing off of the mark of the plaintiff but would cause dilution of the mark of the plaintiff. It is also likely to cause deception and confusion in the mind of the unwary consumer. Furthermore, the apprehension of national as also international security concerns at airports by mala fide usage of the baggage tags and keychains being offered for sale by the defendant prima facie appears to be valid in nature.”

It is common knowledge that when a defendant decides not to dispute a lawsuit while being served with an injunction order, this proves that the defendant is engaging in the actions that the plaintiff in the plaint has accused them of. The court ruled that the defendant has no basis for the use of an identical trademark for the sale of their goods given that the plaintiff is the registered proprietor of the “VISTARA Marks” and none has entered an appearance for the defendant.

INTRODUCTION

One of the most rewarding aspects of media outlets is reflected in video games. Every year, consumers spend over $25 billion to enjoy the interactions that teams of writers, organizers, and programmers have. With so much in doubt, it makes sense for the companies that create these video games to want to provide the best legal protection for their products. Copyright laws give video game developers the judicious right to reproduce, market, and turn off products based on their game’s code, characters, images, and exchange. Understanding the material legal structure is necessary given the ongoing, dynamic growth of the video game industry and the growing revenue it generates, which is now equal to the size of the film industry and outpacing the music industry in terms of overall revenue.

This article focuses on examining the relevant national legislation in order to provide video game engineers with information on the main current legitimate openings for the security of their rights and interests during the creation of a video game and its subsequent use and distribution. The video game market is worth many billions of dollars. As of 2018, the global gaming market was worth $137.9 billion, with roughly half of all revenues coming from mobile devices. It’s also important to note that after India’s national lockdown began, the founder of Ludo King reported a jump in active users from 13 million to 50 million. But as video games grow in popularity, there is also an increase in issues with infringement in this industry, and there are many different aspects of copyright that need to be taken into account in this regard.

They consist of songs, scripts for movies, stories, videos, artwork, and characters. Video games are therefore not made as single, straightforward works but rather as a collection of various elements, each of which can be copyrighted provided it reaches a certain level of originality and inventiveness (e.g., the characters in a video game, its soundtrack, settings, audio-visual parts, etc.). A video game’s main features, such as its plot, characters, audio-visuals, graphics, and some of the code, may be protected under various categories of “works” as defined by section 14 of the Copyright Act of 1957. Since the numerous categories of works protected by copyright are outlined in Article 2 of the Berne Convention for the Protection of Literary and Artistic Works, video games may also be covered by this provision.

BACKGROUND OF PUBG VS. FORTNITE CASE

The makers of Player Unknown’s Battlegrounds (“PUBG”), Bluehole, sued Epic Games, the developer of Fortnite, in South Korea at the start of 2018 for copyright infringement. Because some elements of the new Fortnite resembled those of PUBG, Bluehole claimed that Epic Games was responsible for copyright infringement. It was asserted that without contributing anything new to the genre, Fortnite simply duplicates the gameplay of PUBG. The genre in question is battle royale, a game mode based on a Japanese movie of the same name, in which a group of teenagers is coerced into a deathmatch by the government. Midway through the year, Bluehole abandoned its lawsuit against Epic Games. On the other hand, the dispute between PUBG and Fortnite brought up a crucial issue: can a genre be copyrighted?

COPYRIGHT CONTENTS IN A GAME

A video game is made up of a variety of elements that combine to create the experience we as players have. All of the elements are contained in the software coding that creates a game’s user interface. Although copyright is already granted for software coding, other works created for video games, such as character designs, storylines, and scripts, may also be protected by copyright. No theme or concept depicted in a game can be copyrighted, as this is the general rule of copyright, which states that only its expression in literary, artistic, or musical form can invoke copyright protection. However, contents that are part of the video game are copyrightable. This is crucial to comprehend because, while a soldier character from a game based on World War I could be copyrighted, neither another soldier character from a game nor a game based on World War II could be restricted.

CASE LAWS

The Supreme Court of India ruled in the case of RG Anand v. Deluxe Films¹ that the film could not be held to have violated the screenplay of the play. The justification offered was that although the concepts behind the script and the movie were the same, how they were expressed was very different. Therefore, it cannot be regarded as a copyright infraction. In the case of Mansoob Haider v. Yashraj Films², the Bombay High Court reiterated that ideas are not protected by copyright. The similarity of ideas does not indicate a copyright violation because after removing differences, the remaining idea is not protected by the law.

The landmark American case Baker v. Selden³ established the idea-expression divide. Selden asserted ownership of the copyright for the fundamental accounting method he created and used in the book. Selden wanted copyright for his ideas, but he never asked for it for the first sentence of the book. The Supreme Court ruled that copyright can only be granted to the expressions and not the underlying theory, and that it cannot be extended to the “ideas” and “art” used in the book.

GENERAL RULE OF COPYRIGHT PROTECTION

It should be noted that gameplay refers to the combination of game mechanics, rules, objectives, impediments, rewards, and punishments used in a particular video game and made visible through the various media shows produced when the player interacts with the game. It becomes essential to find a reasonable balance between the right of initiation and the continued advancement of masterpieces by granting reasonable copyright protection against encroachments from gameplay. An idea, theme, or concept depicted in a game cannot be protected by copyright, but the contents that are included in the video game can.

The idea versus expression doctrine states that only the literary, artistic, or musical expression of an idea, theme, or concept may be protected by copyright. The genre of a video game is an idea, not an expression, and copyright only safeguards the original manifestation of an idea—not the idea itself. We would be restricted to a small number of first-person shooters, role-playing games, racing games, and so forth if genres could be copyrighted, which would be restrictive for both developers and players. By granting a monopoly to the copyright holder, asserting copyright over ideas will further disrupt the market’s flow because only a small number of people will have total control.

ANALYSIS OF PUBG v FORTNITE

Returning to the PUBG vs. Fortnite debate, the only criticism levelled at Fortnite was that it was created by Epic Games as a Battle Royale game. The concept of the Battle Royale genre is not new. In reality, it is based on the renowned Japanese movie “Battle Royale,” in which a despotic government imprisons a large number of high school students on an island, arms them, and orders them to kill one another until there is only one left. Even though PUBG’s developers may have released their battle royale video game before Epic, they cannot stop Epic or anyone else from developing their own interpretation of the idea, provided that there aren’t too many similarities to clone PUBG’s distinctive expression. The reason why Epic’s take on the genre differs so much from Bluehole’s is because of the company’s unique perspective on it.

The video games Fortnite and PUBG are very dissimilar. Both games have distinctive visual styles. Based on screenshots from PUBG, it might be challenging to tell it apart from other gritty, realistic shooting games because of its appearance. The colors in the game are typically earthy tones, the weapons look almost exactly like their real-life counterparts, and the clothing you can find by looting buildings is roughly what you’d expect to find in a hastily abandoned home. The realistic, battle-worn appearance is ideal because the game is meant to be intense. On the other hand, Fortnite has a very stylized appearance that embraces its computer-generated nature rather than trying to hide it.

In Epic Games in-house, you’ll find dozens of employees working on everything from the cross-platform functionality to the massive amount of artwork needed to make it all look as good as it does. The design is entirely cartoon-like, the colors are outrageously vivid, and the weaponry is absurdly overdone. While PUBG is an open battleground with 100 players hosted at once on a single server, with players collecting weapons, medical aid, driving cars, and in-game bombings with game restrictions, Fortnite includes a building mechanic with resource collection to build forts, bridges, and other structures to protect the player from bullets. These gameplay differences set apart both games and do not, therefore, violate the copyright of the PUBG developers.

CONCLUSION

Copyright infringement can occur if the overall idea of the game is expressed in too many similar ways, especially if there are other ways to express the same idea. Most creators are able to minimize their copying of a specific genre’s concepts and rules while also adding their own innovative expressive features. In other words, you could be copying the gameplay and idea, but you wouldn’t be liable for copyright infringement because it would be considered your expression of that genre, as you are replicating other games within the same genre but adding your twist on it, such as adding artistic graphic elements and creating unique characters that set the game apart.

CITATIONS

1. AIR 1978 SC 1613.

2. 2014 (59) PTC 292.

3. 101 U.S. 99 (1879).

This article is written by Sanskar Garg, a last year student of School of Law, Devi Ahilya University, Indore.

BACKGROUND

COURT’S OBSERVATIONS:

• Arudra uses the words Coronil 92B and Coronil 213 SPL which is contrary to what has been used by Patanjali that is “coronil” In this scenario, “coronil” is the common word but in supposedly different contexts.
• Arudra has never actively applied for the word coronil as a wordmark
• Arudra compromised with the invention of the word ‘coronil’ by not registering it as a trademark, which portrays the defection in its birth
• Arudra’s usage of the word coronil implicates the context in which they use it via the products they manufacture that’s for cleaning purposes of industrial machines which would eventually prevent corrosion.
• Lack of any exclusive rights on the behalf of Arudra concerning the word ‘coronil’ as both the labels being registered with the alpha-numerals that is Coronil 92B and Coronil 213 SPL
• No monopoly conferred over a part of the trademark so registered
• Section 29 of the trademarks act 1999 deals with the infringement of the registered trademarks” clause 4 of the same says: A registered trademark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which—
• (a) is identical with or similar to the registered trademark; and
• (b) is used about goods or services which are not similar to those for which the trademark is registered; and
• (c) the registered trademark has a reputation in India and the use of the mark without due cause takes unfair advantage of or is detrimental to, the distinctive character or repute of the registered trademark
• In this case, section 29(4) is not maintainable, merely registering a composite word, which is composed of several features, words or numerals does not provide any rights to sue the other in the aforementioned section.
• Things would have been opposite if Arudra had applied for independent registration of the word ‘Coronil’
• The court is not in a position to direct an injunction by splitting up the composite word into its different components and direct for an injunction.

Whether Patanjali’s usage of the word ‘Coronil’ intended to obtain an unfair advantage or not to be analyzed and determined during the trial
The court concluded prima facie that the usage of the word ‘coronil’ as an immunity booster not deleterious to Arudra’s prominence.
With these, among other observations, the Division Bench reversed Justice Karthikeyan’s August 6 injunction order, and accordingly put away the Rs 10 lakh fine imposed on the defendants.
The Court suggested that the main suit between Arudra and the defendants over the trademark rights for “Coronil” be disposed of within reasonable time, by the Commercial Division of the High Court.

Reported By – Anjali Singh

Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.
Exhaustive lists of works covered by copyright are usually not to be found in legislation. Nonetheless, broadly speaking, works commonly protected by copyright throughout the world include:
• literary works such as novels, poems, plays, reference works, newspaper articles;
• computer programs, databases;
• films, musical compositions, and choreography;
• artistic works such as paintings, drawings, photographs, and sculpture;
• architecture; and
• advertisements, maps, and technical drawings.
Copyright protection extends only to expressions, and not to ideas, procedures, methods of operation, or mathematical concepts as such. Copyright may or may not be available for several objects such as titles, slogans, or logos, depending on whether they contain sufficient authorship.
The request for a copyright infringement between Joy Products and Nivea was passed by a solitary adjudicator Seat of Equity C Hari Shankar who found that the shape, size, and shading result of “Satisfaction Serious Dampness” cream was misleadingly comparative, regardless of whether not indistinguishable, to that of Nivea.
“Comprehensively seen there is, at first sight, each probability of an unwary buyer, of normal knowledge and blemished memory, befuddling the result of the respondents with that of the offended party,” the Court said.
Beiersdorf AG (offended party) moved toward the High Court after it came to realize that the RSH Worldwide Pvt Ltd (litigant) had started assembling of “Satisfaction Extreme Dampness” saturating cream by utilizing an exchange dress which was misleadingly like its own cocoa margarine lotion.
The offended party attested that the distinctive highlights of its exchange dress were evident from the body of the items.
It was expressed that the brand name was written in white textual style on a dull blue foundation, had an unmistakable blue shading which is unavoidably related to the offended party and its items, a milk twirl/sprinkle gadget in white tone towards the lower half of the holder and cocoa margarine as a bead plan in brilliant tone in the milk whirl/sprinkle gadget.
Claiming encroachment of its brand names and exchange dress, the offended party contended that the litigant was attempting to ride the standing gathered by the Nivea items throughout some undefined time frame.
The Court was likewise educated that separated from the encroaching item, none of the exchange dresses of the litigants’ items emulate or imitate any of the particular highlights which mark the exchange dress of the offended party’s item.
The Court said that the “test for examination” was not recognizing dissimilarities between items yet the presence of “misleading likeness”.
“The respondents’ item is likewise contained in a compartment of comparative, regardless of whether not indistinguishable, shape and size, with white letters on a blue foundation, the shades of blue additionally being like the unaided eye and, maybe, most essentially, a white crescent sprinkle towards the lower half of the holder, which at any rate is, at first sight, a component unmistakable to offended party’s item,” the Court noticed.
The Court in like manner presumed that a by all appearances instance of conscious encroachment of the exchange dress of the offended party by the respondent was made out.
“In view thereof, till the following date of hearing, the litigants, their chiefs, wholesalers, merchants, accomplices, or owned, by and large, its officials, workers, and specialists are controlled from utilizing, fabricating, selling, sending out, bringing in, offering available to be purchased, dispersing, promoting, straightforwardly or by implication managing in restorative items, particularly body cream, moisturizer or merchandise that are misleadingly like the offended party’s unmistakable exchange dress, adding up to the encroachment of the offended party’s enrolled brand names as expressed in passage 12 of the plaint, especially Brand name Enlistment Nos. 2912562 and 3289787; encroachment of the offended party’s copyright in the imaginative work of the offended party’s “NIVEA” name, compromise dress as likewise passing their items as exuding from the offended party,” it requested.
The Court explained that the litigant will be at freedom to apply for variety or change of the request.
Anand and Anand Overseeing Accomplice Pravin Anand with Backers M.S. Bharath, Dhruv Anand, Premchandar, Udita Patro, N.C. Vishal, Kavya Mammen, and Sampurnaa Sanyal showed up for the offended party. None showed up for the respondent.

Reported by – Komal Dhore