Copyright Trademark

Hari Puttar, now playing in Delhi


Misinformed reporting?
An update on the Hari Puttar story we reported on recently: Our primary sources for that report were news stories that appeared on various websites, Indian and international. These reports, considering that they contained practically the same quotes from the parties to the case, were presumably based on a press release or a press conference.

SpicyIP has since acquired information that suggests that these reports might in fact be incorrect. The applicants, i.e., Warner Bros. (WB), have been tight-lipped on the case, leaving us little room to investigate. However, one glaring error has been made in the preceding reports: the suit has been filed in the Delhi High Court, and NOT the Bombay High Court, as suggested earlier. It is strange that every news report running this story should have written otherwise, unless someone has deliberately led them astray.

Hari Puttar vs Harry Potter: Deceptive similarity
Further, SpicyIP has researched and unearthed a number of news clippings on the web dating back a few years that
refer to Hari Puttar as an alternate handle for Harry Potter. E.g., take this Subhash K Jha article in TOI of 2005, where the reference is made abundantly obvious. Even though any association with the Rowling series is denied, a hat-tip to the namesake is made– by the filmmaker himself, here.

Mirchi Movies, the defendant moviehouse, is incidentally the movie arm of the Times Group. It amuses me that the film house, on its own site, should put up for view press coverage such as this, which is titled “India’s reply to Harry Potter”. Would it be too much to surmise that the filmmaker and/or the production house, by linking to such articles, is trying to indirectly cash in on the Harry Potter trademark? I.e., in acknowledging that Hari Puttar is indeed a “reply” to Harry Potter, surely there is more to the tale than meets the eye.

What concerns one immediately is the large number of articles pre-dating this suit that presume the film, or at least the title, is a spoof on Harry Potter, and/or that it hopes to attract an audience riding the HP wave: such as this rediff article, and this TV18 piece. Further, reports such as this quote Shamita Shetty, who performs briefly in the movie, who initially had the impression that the film was an Indian take on Harry Potter. Similar observations were allegedly made by the lead actor, Zain Khan. That the producers/filmmakers made no attempt to deny such reports could swing the matter against them.

Curious about the linguistic debate that this has spurred, I did a search for the official translations of the books into Indian languages. I found that the Devanagari spelling was the closest to the original English, but there were variants in the other languages: in Malayalam, for example, the name is transliterated as “Haari Poater”. But while the “authorised” translations retain the original proper noun, the colloquial reference to the series may vary, as appears to be the case in this story.

The Hari Puttar moniker (as the Hindi/Punjabi version of Harry Potter) was bandied about several years ago, when translations of the books were being discussed. I found this editorial and this blogpost (on the mother-of-all NRI blogs, Sepia Mutiny) which refer to HP as “Hari Puttar”. This would say something about the similarity between the two, and may dent the defence’s case about the name being mere coincidence.

There is also the concern that some images from the movie are evocative of the Harry Potter series. Two screen grabs from the promo trailer running on the film’s official website have been added to this post, which I thought could spell trouble for the defendants: a palatial house, very castle-like; and an old fashioned steam engine, presumably for effect, but does the Hogwarts Express spring to mind?

What happened when
To give you a run-through of sequence of events in the case: UK-based entrepreneur Lucky Kohli, and others, began filming/production in 2005 on location in the United Kingdom. Indeed, at the time of filming itself, in November 2005, a UK-based regional daily tabloid had reported that the movie would likely run into trouble because of its title. Foresight. Hmm.

In 2006, there was reportedly some exchange of letters on the subject between Warner and the producers but the picture is unclear as to how the talks concluded and why the title stayed. Circa March 2008, WB became aware of the filmmaker’s tie-up with Mirchi Movies for marketing and distribution, and decided to go litigious. The suit was filed on 14 August 2008, and it came up for hearing on 19 August, before Justice Reva Khetrapal of the Delhi High Court. WB were denied an ex parte injunction, and instead the defendants were issued notice, to which they had to give a written response within a week. However, it did not get argued on 25 August as per scheduled, and has been adjourned for hearing to 2 September, when the tragicomedy (or as you will) continues.

As an aside, Justice Khetrapal, who is hearing this case, has passed some quality IP judgements in the recent past, most notably on a jurisdictional matter involving Kensoft Infotech Limited, and another involving fashion designer Tarun Tahiliani. We naturally look forward to her observations in this matter.

What happens next?
You may recall from the earlier post that I was curious about the timing of the suit, which was, like in the Durga Puja pandal case, very close to D-day (in that case, it was the puja; here, it is the film release, which SpicyIP has learnt is scheduled for October 19, and not as reported earlier). If the decision is in favour of Warner Bros, will the court pass an order similar to the one in the Durga Puja pandal case?, where the pandal was allowed to stand despite an observation that there had been a violation.

The striking difference in this case is that the Indian movie house will find it difficult to demonstrate absence of commercial interest, I suspect. Additionally, there is the question of intent of the defendant filmmakers: consider the images of the film, the argument that they attempted to sell the rights to Warner Bros., the film’s uncanny (and acknowledged) similarity to Home Alone… It is very likely that the objectives of the filmmaker may come under scrutiny, and play a pivotal role in deciding the case.

6 comments.

  1. AvatarMathew

    Hi Sumathi,

    Thanks. Your comment on the screen grabs threw me of. What is it being used in the plaint as (proof of intent to confuse? is that not a dubious argument in a trade mark claims?)?

    Mathew

    Reply
  2. AvatarMathew

    I cant imagine any Hindi Movie goer thinking that Hari Puttar with all the advertisement and trailers that normally go along with a big banner release has any connection with Harry Potter [consumer confusion as to origin or as to existence of a license]. Is there a claim for some form of dilution in the plaint ?

    Reply
  3. AvatarSumathi Chandrashekaran

    Hiya folks: apologies for the delayed reply.

    Frequently ANON: Thanks for the link. Looks like there’s more stuff for people like us to write about, eh. Keep ’em links, and ’em comments, coming.

    Mathew: The images had been mentioned early on in the proceedings; am not sure what has happened to them now. At any rate, they would be of more relevance in a copyright dispute than in a trademark case, and since this case is primarily about the name/title, I doubt if they hold any value.
    As regards the plaint itself, the petitioners are arguing primarily on grounds of the initial interest confusion doctrine, rather than consumer confusion as to origin. Will blog about this in an update to the case shortly.

    Reply

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