Copyright Trademark

‘Hamara Bajaj’- infringement of trademark of Bajaj Auto Ltd.?


Trouble seems to be brewing for upcoming movie ‘Hamara Bajaj’ produced by actor John Abraham’s film production company, J.A. Entertainment Pvt. Ltd. Bajaj Auto Ltd., India’s second largest two wheeler production company has filed a case of copyright and trademark infringement against J.A. Entertainment Pvt. Ltd. This is with reference to the title of the film, namely, ‘Hamara Bajaj’ which is the same as the tag line of the advertisement for the Bajaj Chetak, one of the most popular products of Bajaj Autos.

Although the tag line appeared in the advertisements for the Bajaj Chetak in the mid-1980’s and the Bajaj Chetak has not been produced since 2009,according to Bajaj, the public still continue to associate the tag line with the company, Bajaj Auto Ltd. According to Bajaj, the fact that the tag line has been consistently used by Bajaj in its corporate campaigns contribute to the identification factor. The Bombay High Court granted interim relief to Bajaj on 2 April, ordering J.A. Entertainment Pvt. Ltd. to not advertise or release its movie until the final order is passed by the Court. The final court order is due on 17 April, according to this newspaper report.

The issue of the film industry violating the intellectual property rights of  companies is not new. In 2010, the producers of the blockbuster movie, Dabangg, ran into trouble with Emami Ltd. owing to its use of the name of one of Emami’s products, Zandu balm in an item song in the movie. In that case, only a case of copyright infringement was brought out by the Claimants. The fact that a trademark infringement was not claimed was remarked upon in our earlier post on this issue. Eventually, the case was settled out of court with Ms. Malaika Arora Khan doing several advertisements as a brand ambassador for the brand.

Similarly, Bata had gone to Court with a defamation claim for the use of the word Bata in a negative light in Prakash Jha’s movie ‘Chakravyuh’. Readers can refer to Kruttika’s excellent post on the same for complete details. Although, this was a defamation claim, the fact situation is similar to the Hamara Bajaj and Zandu balm cases. Bata, eventually lost the defamation suit at the Delhi High Court.

The issue behind these trademark infringement cases is quite simple. The question is whether producers of film can be allowed to capitalize on the investments made by owners of trademarks, especially when they are huge brands like Bajaj. There is also a possibility that  Bajaj’s brand value would be adversely affected if the film does not do well at the box office. But on the other hand, as J.A. Entertainment has clarified, the title of the film comes from the name of the lead character in it, Sanjay Bajaj. Whether this will entitle them to the defence of nominative use of trademark, we will have to wait and see.

L. Gopika Murthy

Gopika is a fourth year student at National Law School of India University, Bangalore. She was formerly the Chief Editor of the Indian Journal of Law and Technology. Her first exposure to Intellectual property law and SpicyIP was through the University Moot Rounds at NLSIU, Bangalore in her first year. She has been regularly following the developments in the field of IPR since then and she hopes to contribute to the reporting of such developments. Her areas of interest in IP include copyrights, open access, fair dealing and trademarks.

3 comments.

  1. anushree rauta

    There was one more case of NOKIA CORPORATION and ORS vs MOVIEEXPRESS and ORS [CS(OS) 286/2012] wherein Nokia had succeeded in obtaining an injunction against the defendants from advertising, airing songs, publishing, publicizing, offering for viewing their film titled Mr. Nokia/Mr. No. Keyia/ Mr. Nav-kia and/or offering the songs containing the reference to the said marks.
    As a matter of trade practice, film titles are usually registered with associations like IMPAA, AMPTPP, The Film and Television Producers’ Guild, etc. These associations have their own bye-laws, rules and regulations. If these trade bodies make it a point to see that no titles are registered which are likely to infringe the trademarks or atleast the well known trademarks, it could prevent a lot of trademark infringement cases pertaining to titles.

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  2. Anonymous

    Bajaj’s advertisement in relation to Hamara Bajaj did not relate only to Chetak. I remember the ads to portray all bikes and scooters of Bajaj in 1990s and 2000s. I think it would be better to correct the blog on that aspect.

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  3. Anonymous

    Much hinges on whether the phrase “Hamara Bajaj” has been trademarked. If yes then comes the question whether the “nominative use” of the phrase by the movie maker needs to be prevented through judicial intervention. (A related question: Why should nominative use of a trademarked name or phrase, always be worthy of prevention?) There is no blanket rationale. See also the failed attempt by a Singapore school to use Trademark claim to stop publication of a Parent’s blog, which qualified to be a Chilling Effect. However, jurisdictional differences do apply. Under the Indian IT Act, it is much easier to take down websites and that is how essentially the same contention, re-incarnating as GIIS K12 Private Ltd vs Google Inc & Anr (CS(OS) 1080/2010, I.A. 7357-7358/2010, Delhi HC) has proceeded. I do agree that significant differences also exist in the nature of the medium (movie vs. internet) limiting the relevance of citing this. However, all told, in my view, trademark claims for any purposes other than preventing dilution and passing off, are to be viewed with a very critical eye. Defamation ? No, no. Stoppage of publication ? Needs very careful examination.

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