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HIGH COURT OF CALCUTTA
SANJIB BANERJEE, J.
Ht Media Ltd. - Appellant
Versus
Utv News Ltd. - Respondent
G.A. No. 2003 of 2010; G.A. No. 2038 of 2010; C.S. No. 162 of 2010
Decided on : Aug 31, 2010
COPYRIGHT - INFRINGEMENT - ADVERTISEMENT - THEME - EXPRESSION - DISTINCTION - COPYRIGHT LAW - PROTECTION OF EXPRESSION - NOT IDEAS - IDEA-EXPRESSION DICHOTOMY - SUBSTANTIAL SIMILARITY TEST - PASSING-OFF - REQUIREMENTS - INJURY TO TRADE OR PRODUCT.
Fact of the Case:
Plaintiff, a leading media house, launched a series of advertisements featuring English words interspersed with Greek letters to convey the message that its business news was different and lucid. The defendants, a rival business news channel, released a series of advertisements with a similar concept, using English words and Greek language. The plaintiff filed a suit alleging copyright infringement and passing-off.
Finding of the Court:
1. The plaintiff's use of English words with Greek letters or words does not elevate it to the status of a literary work. 2. The underlying thought in the present case is not only the sense that "it's all Greek" conveys but also the plan to capture the essence of the concept by using English words with Greek words or letters which collectively render the seemingly constructed sentence unintelligible. 3. The 'idea' in such context is a combination of wanting to convey the sense of "it's all Greek" arid using a few English words interspersed with Greek words or alphabets to form a meaningless sentence. 4. The expression of the sense of "it's all Greek" and how English and Greek alphabets would be used to convey such sense, collectively forms the idea or the theme of the plaintiff's advertisement campaign. 5. The reduction of this collective idea into an appearance which is apparently spectacular is not so distinctive for the plaintiff to claim exclusivity in the use of English words with words or alphabets of another foreign script not generally understood by the target audience. 6. The plaintiff cannot claim any copyright in its plan to communicate the sense of "it's all Greek" by using a few English words around words or letters of another script that is not easily understood by persons to whom the message is intended to be conveyed. 7. The theme of both campaigns in the present case may be the same but they are presented and treated differently and even if the defendants' campaign appears to be inspired by the plaintiff's, the plaintiff seeks exclusivity over something which is far too nebulous. 8. The substantial similarity test that the plaintiff refers to would not allow the plaintiff to a monopoly over the English vocabulary when used in conjunction with another foreign language to convey the sense of "it's all Greek." 9. Passing-off would involve an underlying injury to the plaintiffs trade or its product but a mere claim of passing-off relating to a plaintiff's advertisement, without claiming any damage to the plaintiff's trade or product, may be a difficult case to establish.
Issues: 1. Whether the plaintiff's use of English words with Greek letters or words constitutes a literary work entitled to copyright protection? 2. Whether the defendants' advertisements infringe the plaintiff's copyright in its advertisement campaign? 3. Whether the plaintiff has a cause of action for passing-off in respect of its advertisements?
Ratio Decidendi: 1. Copyright law protects the expression of creative authorship, not mere ideas. 2. The idea-expression dichotomy distinguishes between the underlying concept and its specific expression. 3. The plaintiff's use of English words with Greek letters or words to convey the sense of "it's all Greek" is an idea that is not protected by copyright. 4. The defendants' advertisements, while inspired by the plaintiff's campaign, present the same idea in a different manner and do not substantially copy the plaintiff's expression. 5. Passing-off requires injury to the plaintiff's trade or product, which the plaintiff has not established in this case.
Final Decision: The plaintiff's application for an injunction is dismissed. The defendants' application to discharge the initial injunction order is allowed. No order as to costs.
Sanjib Banerjee, J.
1. THE plaintiff is a leading media house and it has added to its original business of publishing a well-known newspaper by the name of Hindustan Times by making forays into radio and the internet. The plaintiff's flagship publication has wide acceptability and the newspaper, originally a leading daily in Delhi, has also a Calcutta edition. A few years back the plaintiff launched a business daily by the name of Mint in collaboration with a reputed international business newspaper. The plaintiff claims that Mint has gained wide circulation over a short span of time and owes much of its phenomenal success to its readers having access to the worldwide business news covered by the much acclaimed Wall Street Journal. The plaintiff says that Mint has an impressive circulation of over 1,20,000 copies daily in six cities in the country, including Calcutta, and counts reputed commercial institutions and entrepreneurs in its list of annual subscribers.
2. THE story unfolds with the plaintiff releasing a series of advertisements in May, 2009 where there is an announcement in the form of a sentence with only some of the words in English; the other apparent words are made up of Greek letters that may or may not constitute words in that language. The plaintiff cm barked on a high-profile publicity drive by launching the advertisement campaign in the print media, the essential message whereof was contained in the following slogan appearing at the foot of each advertisement: "Presenting Mint, refreshing clarity in business news." Below such slogan there are two further lines in smaller print to the following effect: Clear and well-analysed business minus the jargon. Global perspective with an exclusive section from The Wall Street Journal. Everyday.
The USP, to borrow a jargon from the parties' line of business, of the print advertisements was undoubtedly this unintelligible message screaming out partly in English and partly in gibberish in a strange alphabet. To the top right corner of the advertisement there is the Mint logo with the name in unspectacular lower case printed in white against a yellow rectangular background. Above the yellow rectangular patch, the name of the plaintiff's foreign collaborator's paper Wall Street Journal is written in block letters but in much smaller size. The announcement in English and Greek is in black capital letters against a white background that is in larger size than anything else written in the advertisement. At the bottom right of the advertisement there is a picture of the Mint newspaper with the section dedicated to Wall Street Journal on an inside page clearly visible.
3. THE plaintiff says that the concept of incorporating the notion that ordinary business news as it is presented may be Greek to the audience not versed in that old and rich language first dawned on the plaintiff and was expressed in the use of the English words interspersed with Greek alphabets for conveying the message that the plaintiff's publication was different and the news that it communicated was lucid and graspable by its readers. The plaintiff insists that in its conceptualisation of the idea and the expression thereof in tangible form, the plaintiff is entitled to the exclusive use of the manner of expression thereof and any variant of such expression would amount to infringement of its copyright therein. The plaintiff has also pleaded a cause of action in passing-off, though the relief claimed therefor is an injunction on the defendant from "passing off or attempting to pass off its advertisements as that of the plaintiff." The claim in passing-off is not in the trade mark sense of the cause of action; the plaintiff restricts the cause of action to its advertisements and does not relate it to the plaintiffs product.
4. THE English and Greek writings are different in the several advertisements and immediately below the main announcement that is the striking feature of each advertisement, there
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