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Intellectual Property Right In An Advertisement Campaign

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 Karta Bajaj. [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 Mange More 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 particular brands.
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 rights?

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 advertising campaign.

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.

Where 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 positive connotation.

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.

Written By: Ajay Amitabh Suman, IPR Advocate, Hon'ble Delhi High Court,
Email: [email protected], Ph no: 9990389539

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