Warning, several intended shoe puns have been weaved into this post.
Recently, Justice Gambhir of the Delhi High Court in an extensive decision (of about 70 pages) held that the use of the word Bata in the song Mehangai in Prakash Jha’s new movie Chakravyuh was impermissible.
In record time, this judgment has been overruled by the Division Bench of the Delhi High Court and Bata has been booted out of court. The Bench through presiding judge, Justice Nandrajog has made some rather interesting observations in this case which is largely rooted in alleged defamation of the House of Bata.
Our readers will remember that the facts of this case are almost identical to the case where Emami sued the makers of Dabaangg for using their trade mark Zandu Balm in the song Munni Badnaam hui. (Picturized on Malaika Arora Khan, I highly doubt people were actually paying attention to lyrics in the song!) The case was ultimately settled, and also resulted in Mrs. Arora-Khan appearing in Zandu Balm ads. Odd.
Back to the facts of the case, the Judge has very helpfully provided a translation of the (rather entertaining) song in English-
“Whether Birla or Tata, Ambani or Bata….
In their own interests, all have exploited the country
Whether Birla or Tata, Ambani or Bata
In their own interests, all have exploited the country
It is our blood by which their
It is our blood by which their
Engine is fuelled/running
The common man‟s pocket is completely emptied out
The common man‟s pocket is completely emptied out
Now your goonism will do no longer
Now it is our turn
Now your goonism will do no longer….”
(So on and so forth)
Bata contended that the use of its trade name in the context of this particular song laced with inferences about inflation, corruption, greed and exploitation by big corporate houses would lead the listener to view Bata in a negative light. In the context of freedom of speech and expression vis-à-vis the right of privacy, Bata argued that unlike objective views, subjective opinions where no real factual basis can be shown should be deemed to be defamatory per se. Taking it a step further, they then argued that as long as the defamatory material remained in public domain, its mere existence would be akin to a recurring cause of action.
While this was successfully argued before the Single Judge, the Division Bench did not quite see Bata’s argument having the same effect.
The DB instead agreed with the appellant’s contentions that the use of the trade name in the song was rhetoric hyperbole and tied this in with the socialist and political struggle between the haves and the have nots that the film is based on.
My personal opinion is that this decision is correct. In fact, (and forgive me for going off topic here) I think the problem is largely that Indians (in general) cannot take a joke. The law of defamation requires the person alleging such defamation to prove that the statement has a tendency to injure the reputation of the person i.e. to lower the person in the estimation of right-thinking members of society generally and in particular to cause him to be shunned or avoided or regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business.
No right thinking member of society would automatically assume that the songs in the movie Chakravyuh are completely true and accurate representations of corporate houses. In fact, I was pretty surprised with the strong language used in Justice Gambhir’s decision on how perceptions in movies can influence people. Sure they can, but would they really get you to believe in two lines of lyric that a big corporate house is the reason I am not in the best economic position today?
I would be surprised if this case goes to the Supreme Court in appeal, and even more surprised if the Special Leave Petition is allowed by the Supreme Court.
But that is speculation. Until then, you can enjoy the song which is
pretty darn awesome.
• Author’s note: this post was originally captioned “Bata sho(o)ed out of Court – No infringement says Delhi HC”; that has been subsequently amended to state “No defamation says Delhi HC” since the case did not involve questions of trademark infringement.
I understand that the claim was not trademark infringement but solely defamation. Using a trademark infringement claim for stoppage of publication tends to get thrown out. Example here Global Indian Foundation Caese and Desist Letter against blog Parents’ Forum for a Better GIIS. See also the bone of contention news report DNA India.
Hi Anon @8:33, thanks for your comment. I changed the blog post title to reflect this intial mistake on my part. I also think the reason that a claim for TM infringement gets thrown out is because you need to show how the use of the trademark is linked to harming/diluting/impinging upon the trade mark rights of the Plaintiff or to unfairly pass off the Defendant’s business as that of the Plaintiff or to show association of some sort. Neither of these things happen when a corporate name is used in an allegedly derogatory fashion in a song such as Mehangai. So basically, I agree with your comment 🙂