Warner loses the Hari Puttar plot

Hari Puttar- A Comedy of Terrors is going through for release finally this Friday, after the Delhi High Court decided against Warner Brothers, hinging its 26-page judgement on the issues of delay in filing the suit, and suppression of facts. We wait to see if Warner appeal against this judgement or not, but meanwhile, for the benefit of our readers, I reproduce substantive paragraphs of the judgement below (as a result of which this post is uncomfortably lengthy).

Delay in filing of suit
While noting that the plaintiffs had failed to establish that any irreparable loss or injury would be caused to them upon release of the film, the court highlighted the timing of the suit, which was so close to the release date of the film in question. You may recall that SpicyIP had expressed prior concern over the timing in an earlier post, and speculated on whether the film would be allowed for release, even if the decision went in favour of WB, as in the Durga Puja Pandal case. Circumstances here are different, but the issue of delay has indeed played a crucial role in the decision.

[from para 36] [T]he defendants have painstakingly trudged a considerable distance in the production of the film, which is now complete and at the stage of release within a matter of days. During the sojourn of the defendants, the plaintiffs at the most may be said to have half-heartedly whimpered against the use of the title “Hari Puttar” by the defendants, but thereafter they chose to squat comfortably and thus ensconced, have been watching the defendants’ progress step by step towards their goal, to the finishing line. Their belated attempt to trip up the defendants at the finishing line is a course of conduct which, in my opinion, is diametrically opposed to the cardinal principle of vigilentibus non dormientibur enquitor and cannot be countenanced by a Court bound to take into consideration legal as well as equitable considerations.

In arriving at her decision, Justice Reva Khetrapal brought to notice the last extant communication from the plaintiffs to the defendants, that thanked the filmmakers for proposing three alternative film titles for their review (all of which contained the words ‘Hari Puttar’) while suggesting that an entirely different name (without this combination of words) be used.

The court observes that after this last exchange,
{from para 24} No cease and desist notice or any legal notice whatsoever appears to have been addressed by the plaintiffs to the defendants, and even the attempt of the defendants to have their film registered with the [MPAA] in … 2007 does not appear to have propelled the plaintiffs into filing a suit against the defendants. Why the plaintiffs did not attempt to file a suit against the defendants at this juncture is indeed mystifying, for, no doubt, could have been left in the mind of the plaintiffs at least at this juncture that the defendants intended to complete the film. The plea put forth by the plaintiffs in … the plaint that plaintiffs fairly believed that the defendants had shelved the project is, therefore, in my view, clearly aimed at misleading the Court by suppression of the true facts.

Dismissing the plaintiff’s arguments of absence of acquiescence, the court notes,
{from para 30} It is settled law that if the plaintiffs stood by knowingly and let the defendants build up their business or venture, then the plaintiffs would be estopped by their acquiescence from claiming equitable relief. Acquiescence on the part of the plaintiffs would amount to waiver, if not abandonment of their right. … Needless to say that delay by itself may not necessarily be a ground for refusing injunction, but delay would be relevant in adjudging a change in the subject matter in an action brought about by a situation in which the plaintiff sat on the fence, watching the defendant enrich its trade by investment of money and labour and involving third party rights in the same [referring to tie-ups with other brands].

Suppression of material facts
While suggesting that the plaintiffs did not come to it with clean hands, the court says that “a deliberate suppression of material facts, viewed singularly or coupled with blatantly false assertions, so far as the grant of equitable relief of injunction is concerned, is fatal. The plaintiffs… have attempted to lightly brush off their intentional non-disclosure by feigning oversight, contending that they had nothing to gain from the aforesaid non-disclosure.” [para 29]

In this regard, the judge refers to two submissions made by the plaintiffs as being misleading:
1. an affidavit of 8 September 2008, which stated that there no posters of “Hari Puttar” in any film theatres or any promotion in McDonalds, “completely forgetting that the stand taken in the plaint was to the contrary”.
2. the procurement of a letter from the MPAA withholding information of how MPAA had sent an email to the plaintiffs mentioning the suit number of the present suit and other details and enclosing the Rules of the “Title Registration Bureau”.

The cognoscenti vs the illiterate
The denouement, though, comes right at the end of the judgement, where the court says that the potential audience of the books and the movies is of a profile that would know the difference between HP and HP. Most print stories (see HT and IE) today have pegged their pieces on this.

Recall that the plaintiffs had argued on grounds of Initial Interest Confusion, and that the question of similarity between the two titles had to be approached from the perspective of an “unwary purchaser of average intelligence and imperfect recollection”. The judge summarily dismissed this argument with this caustic observation:

[from para 33] [E]ven assuming there is any structural or phonetic similarity in the words ‘Harry Potter’ and ‘Hari Puttar’, what has to be borne in mind is that the Harry Potter films are targeted to meet the entertainment needs of an elite and exclusive audience—the cognoscenti – an audience able to discern the difference between a film based on Harry Potter book on the one hand and a film which is a Punjabi comedy on the other, the chief protagonist of which is Hariprasad Dhoonda. It is not the case of a consumer good or product, which stands on an entirely different footing.

Necessarily, the yardstick must also differ bearing in mind the fact that a consumer product such as a soap or even a pharmaceutical product may be purchased by an unwary purchaser or even an illiterate one, but the possibility of an unlettered audience viewing a Harry Potter movie are remote to say the least. To put it differently an illiterate or semi-literate movie viewer in case he ventures to see a film by the name of Hari Puttar would never be able to relate the same with a Harry Potter film or book. Conversely, an educated person who has pored over or even browsed through a book on Harry Potter or viewed a Harry Potter film, is not likely to be misled. Such a person must be taken to be astute enough to know the difference between a Harry Potter film and a film entitled Hari Puttar, for, in my view, the cognoscenti, the intellectuals and even the pseudo-intellectuals presumably know the difference between chalk and cheese or at any rate must be presumed to know the same.

What about SpicyIP’s audience?
This leaves me asking just one question: What does this say about participants in the SpicyIP poll, including myself, where a 68% majority believes that the name “Hari Puttar” does indeed make one think of “Harry Potter”? Are they members of the cognoscenti or the illiterate? You decide. A new poll, anyone?