The petitioner’s case, as pointed out in a response to comments made in the previous post, is on grounds of the doctrine of Initial Interest Confusion. The general doctrine is premised upon ‘the use of another’s trademark in a manner reasonably calculated to capture initial consumer attention, even though no actual sale is finally completed as a result of the confusion’. (this note elaborates on the tort further).
Warner Bros. has been arguing that there is phonetic similarity between Hari Puttar and Harry Potter; that it is effectively a transliteration of the original proper noun; and that there has occurred confusion by association. If readers will glance at the articles from the press linked to in the previous SpicyIP post, some linkages may spring to mind.
The plaintiffs directed attention to consistent references by the defendant filmmakers in the press that the film was NOT a desi version of Harry Potter. Along the way, they have asked why the defendants have felt the need to constantly clarify/deny association with HP all through, if there was no initial confusion. Similarly, there were suggestions that if intentions of parties to the case were bona fide, why did they not consider changing the title of the film from ‘Hari Puttar’ to ‘Puttar Hari’.
Meanwhile, the defence contended that several of the articles/blog posts, that the plaintiffs have relied upon, lack credibility and are inadmissible as evidence. The defence also specifically pointed out that there was already considerable investment in merchandising and brand tie-ups (e.g., with McDonald’s, Britannia and Diamond Comics), and that there could be no question of changing the title at this stage of events.
The defendants have vehemently argued that delay should be a ground to defeat the injunction as the lawsuit was filed only on 8th August when the movie releases on 19th September. But Warner Bros. countered this saying that the question of delay in filing a lawsuit (as a defence to injunction) could not arise once a legal notice had been sent. It is on record that a notice was sent to the defendant filmmakers way back in 2005, when the film had begun production, and suggesting that an alternate title be used. The parties had exchanged a number of letters at the time and the Defendants had even proposed some alternate titles. The last extant communication was allegedly from WB to the defendants stating that none of the titles were acceptable, and that any reference to Hari Puttar from the title be removed altogether. WB claims no response to this letter was ever received.
As an aside, the soundtrack for Hari Puttar – A Comedy of Terrors has already been released. For those not in the know, film music in Indian cinema is an independent industry in its own right, boasting of competing volumes, and often of a quality superior to the films themselves.
There is also another IPR angle to the Hari Puttar that is not the domain of Warner Bros., but is of interest to observers nonetheless. Throughout reports of the film, repeated mention has been made of the plot’s resemblance to the Home Alone series, where a young boy was left alone at home to fend off criminals, etc. There is a potential copyright issue here that does not seem to have caught the interest of Fox Movies, who are the original producers of the Macaulay Culkin films. Experts suggest that this is likely because Hollywood is generally reluctant to pursue such cases outside the US, in view of domestic law, which protects parodies and suchlike. Indian law, on the other hand, has a defense only for fair use, and there may be a beacon of light for such cases if they are pursued. But no plaints are in sight. Still, this is not the first time that foreign films are being copied – Bheja Fry/Le Dîner de cons is a popularly cited case in recent times.
Meanwhile, misreporting continues: this time CNN-IBN, in its news report published online, conveniently confuses trademark and copyright. After informing us that “Warner Bros, the owner of the Harry Pottertrademark, have filed a lawsuit against Mumbai-based studio Mirchi Movies and have sought an order restraining producers of the film from releasing the movie under its present title”, the report signs of in a flourish with the comment that “The decision could very well be a landmark judgement as far as copyright issues in India are concerned.” Sigh.