Several decades ago, there were many advertisements that were extremely
popular among the public. I remember an advertisement that said, Jab Mai
Chhota Bachcha Tha, Badi Shararat Karta Tha, Meri Chori Pakdi Jati, Jab Roshni
[When I was a youngster, I used to get into mischief, and my
thefts were always discovered when Bajaj was lighting]. This advertisement was
unmistakably BAJAJ Electric Bulb.
Other advertisements included Baratiyon Ka Swagat Pan Parag Se Kijiye
[welcome the processions with Pan Parag
]. Likewise, Pepsi's Ye Dil
campaign was another famous advertising campaign.
Dad Khaj Khujli Kaa Dushman, B-Tex Lotion, B-Tex Malham
[The Enemy of
Ringworm and Itching, B-TEX Lotion, B-Tex Ointment] are also examples.
The advertisement was exclusive to B-Tex Ointment and Lotion. Some of these ads
strike the memory of common people and associate particular products with
Advertisement campaigns have repeatedly demonstrated their importance in the
growth of businesses. It takes a lot of time and effort to create a
one-of-a-kind advertisement campaign. Naturally, monetary investments are made
in the creation and dissemination of advertising campaigns.
When a right
holder's campaign becomes popular, any other party may attempt to capitalize on
its advertising campaign. The question is how to protect intellectual property
rights in an advertisement campaign.
There might be different ways to run advertising campaigns. An advertising
campaign can be spread using audio, video, or print media. This article
discusses the scenario in which an advertising campaign is displayed and
distributed via video.The issue at hand is how such advertisement campaigns,
which are spread via video mode, can be protected by the owner?
What types of
intellectual property rights are present in a marketing campaign? When an
advertisement campaign is distributed via video, it may contain a variety of
elements. In such a case, how can a right holder assert intellectual property
One such case was heard before Justice Prathiba M Singh of the High Court of
Delhi in Suit bearing CS (Comm) 144/2022 titled Bright Life Care Pvt. Ltd. Vs
Vini Cosmetics Pvt. Ltd., in which the Plaintiff filed the suit based on its
intellectual property rights in its advertisement campaign JIDDI HUN MAIN, which
was projected in video form. The Plaintiff sought injunctive relief against the
Defendants, alleging that the Defendants were also using similar advertising
campaigns, causing market and trade confusion and deception.
JIDDI HUN MAI was the title of the Plaintiff's video campaign, which was
launched in March 2018. The Plaintiff launched this advertisement campaign in
relation to one of its products, protein supplements. The Plaintiff filed this
suit on the grounds that the Defendant launched a similar advertisement campaign
for their deodorant product in 2022.
The plaintiff claimed that the defendant was infringing upon its copyright in
the aforementioned cinematographic work, i.e., the ZIDDI HUN MAIN marketing
campaign, by employing the tagline ZIDDI PERFUME, as well. The plaintiff's
lawsuit was founded on the fundamental components of the aforementioned
The entire appearance, philosophy, and tone of the Plaintiff, including the word ZIDDI, was one of the fundamental components
that the Defendants plagiarized. A handful of the frames in both the Plaintiff's
and the Defendants' advertisements resembled one another.
The plaintiff alleged that the imitation by the Defendants of the Plaintiff's
essential component were like for example a muscular individual exercising in a
dark-colored, Zym-like setting, Lettering with a black background and a white
and yellow colour scheme etc. In order to refute the claim of the plaintiff, the
Defendants argued that no one may claim ownership of the term ZIDDI
exclusively. The song ZIDDI DIL has already been used in the film Mary Com.
The phrase ZIDDI CHORIYA was also utilized by Parle G in one of its advertising.
Along with bringing up these defenses, the defendants also made an effort to
highlight the differences between the two marketing campaigns. However, the
Hon'ble High Court of Delhi was pleased to grant relief in favour of the
Plaintiff against the defendant vide its judgement of July 7, 2022, after
analyzing the relevant facts and legal framework.
The Hon'ble High Court of Delhi underlined the long-standing legal principle
that only the tangible expression of an idea can be the subject of copyright in
this process. The Hon'ble Court made the observation that a verbatim copy of the
original work is not necessary for a party to be found guilty of copyright
infringement when assessing the question of infringement.
However, the owner of the copyright must demonstrate that the infringing work is
a substantial copy of the original. The right holder must establish
distinctiveness and goodwill in order to protect an element of an advertising
campaign. The test of substantial copying in a case of copyright infringement
was already established as a criterion by the Hon'ble Supreme Court of India in
the case known as R.G. Anand v. Deleux Films
(AIR 1978 SC 1613). The Hon'ble
High Court of Delhi relied on the Supreme Court of India's observation in the
R.G.Anand case, the relevant portion thereof is as under:
51. Thus, the position appears to be that an idea, principle, theme, or subject
matter or historical or legendary facts being common property cannot be the
subject matter of copyright of a particular person. It is always open to any
person to choose an idea as a subject matter and develop it in his own manner
and give expression to the idea by treating it differently from others.
two writers write on the same subject similarities are bound to occur because
the central idea of both are the same but the similarities or coincidences by
themselves cannot lead to an irresistible inference of plagiarism or piracy.
Take for instance the great poet and dramatist Shakespeare most of whose plays
are based on Greek-Roman and British mythology or legendary stories like
Merchant of Venice, Hamlet, Romeo Juliet, Jullius Caesar etc.
But the treatment
of the subject by Shakespeare in each of his dramas is so fresh, so different,
so full of poetic exuberance, elegance and erudition and so novel in character
as a result of which the end product becomes an original in itself. In fact, the
power and passion of his expression, the uniqueness, eloquence and excellence of
his style and pathos and bathos of the dramas become peculiar to Shakespeare and
leaves precious little of the original theme adopted by him.
It will thus be
preposterous to level a charge of plagiarism against the great play-wright. In
fact, throughout his original thinking, ability and incessant labour Shakespeare
has converted an old idea into a new one, so that each of the dramas constitutes
a master-piece of English literature. It has been rightly said that every drama
of Shakespeare is an extended metaphor.
Thus, the fundamental fact which has to be determined where a charge of
violation of the copyright is made by the plaintiff against the defendant is to
determine whether or not the defendant not only adopted the idea of the
copyrighted work but has also adopted the manner, arrangement, situation to
situation, scene to scene with minor changes or super additions or embellishment
here and there. Indeed, if on a perusal of the copyrighted work the defendant's
work appears to be a transparent rephrasing or a copy of a substantial and
material part of the original, the charge of plagiarism must stand proved.
As a result, the Court assessed the facts of the case in light of the law laid
down by the Hon'ble Supreme Court of India in the aforesaid R.G. Delux Case. In
the subject matter case, the plaintiff established copyright in frames of its
cinematographic work, as well as used the words ZIDDI and ZID, which have a
The court observed that the use of the expression ZIDDI per se, the use of a
muscular man in a Zym doing workouts, or the use of a punch bag, etc., does not
necessarily belong to an individual. However in the present case , Defendants
have substantially copied the Plaintiff's expression of these basic elements in
two of their advertisement campaigns.
Plaintiff's advertising campaign used yellow and white lettering on a dark
background, which the Defendants copied. To protect one's advertising campaign,
special elements must be incorporated into the video frame and the goodwill
vested therein must be continuously guarded by taking action against the
violators, as the right holder has done in this case.
Case Law Discussed:
Date Of Judgement: 07.07.2022
Case No: Cs (Comm) 144/2022
Name Of Hon'ble Court: High Court Of Delhi
Name Of Hon'ble Judge: The Honourable Justice Prathiba M Singh
Case Title: Bright Life Care Pvt. Ltd. Vs Vini Cosmetics Pvt. Ltd.
Ajay Amitabh Suman
, IPR Advocate,
Hon'ble Delhi High Court,
, Ph no: