India: Injunction Order Confirmed In Favour Of TV Today

Last Updated: 19 November 2008

Trademark infringement disputes have involved parties from nearly all types of corporations and business. The media, typically involved in copyright issues is also witnessing trademark rows with respect to their brand name and identity. Disputing the use and consequent infringement of 'Aaj Tak', the case of TV Today Network and Anr. v. Kesari Singh Gujjar and Ors 2008 (38)PTC 262 (Del.) arose forth the High Court of Delhi.

TV Today Network Ltd. and co-party are engaged in various business operations including TV programme production and publication. They stated that since then they had acquired sufficient expertise in mass media and due to the popularity of its ventures, they decided to commence a news programme in Hindi to be telecast in Doordarshan, in 1995 under the name "Aaj Tak". The trademark "Aaj Tak" was applied for and also Subah Aaj Tak, Khel Aaj Tak and Saptahik Aaj Tak under Class 9. TV Today promoted his co-party to manage and administer the said channel, as a new corporate entity and also licensed the use of the word, logo and trademark in 'Aaj Tak' with respect to the news channel to the latter.

TV Today claimed the term 'Aaj Tak' to be an arbitrary, unique combination of words in the Hindi language, thereby attributing to its distinctive character. Further, since the mark was continuously in use since 1995, they stated that the members of the public associated the mark only with them and that the combination became synonymous to their identity. They also averred to have invested considerable sums of money for the promotion of the said brand and produced figures to substantiate the growing revenue, the viewership of around 19. 4 million (as on April 2005), and in turn vouch the channel' popularity. They also propounded that the numerous awards received by the channel over the years, had cemented its goodwill and reputation. TV Today Network also uses the domain name, where the said mark and logo are depicted, in order to provide news through the Internet. They also said to have proprietary rights in other domain names such as , and among others and stated that the said mark was a well-known mark within the meaning of section 2(1) (zg), of the Trade Marks Act, 1999. TV Today Network contended that since a prima facie case of infringement and passing off had been made out injunction must be confirmed. They also vouched themselves to be the first and prior users of the mark, and prayed that the adoption being malafide with the intention to deceive, the court must restrain Kesari Singh Gujjar and his co-parties from further harming their goodwill.

Kesari Singh averred that TV Today Network had suppressed material information from the Court. They claimed that their newspaper had been in publication and circulation since 1996, and that the same was registered with the Office of Registrar of Newspapers for India, Ministry of Information and Broadcasting. They alleged that since the co-plaintiffs were also engaged in the publication of magazines and newspapers, they would have also known that registration was a pre-requisite for obtaining the right to the title in the newspaper and that on several occasions, they were denied registration because of the prior registration under the Press and Registration of Books Act, 1867 (hereafter the PRB Act). Kesari Singh also propounded of a valid registration since 1996. TV Today and co-parties acquiesced to the publication of the newspaper therefore, an estoppels operating against them. At the time of filing the suit the mark of TV Today was not registered with respect to newspapers.

Kesari Singh averred that they had been in the market since 1996, much before TV Today had opened its news channel, and that hence, they could not be alleged of having taken unfair advantage of the TV Today' goodwill owing to the protection afforded to a prior user under the Indian law of infringement and passing off. On the question of delay and acquiescence, the Court reiterated that the delay must be of an inordinate nature and that mere delay by itself is not recognized as a defense.

Responding to Kesari Singh' contention concerning the right to freedom of press, the Court stated that the question of an injunction restraining it from infringing a registered trademark violating such a fundamental right did not arise. The Court concluded its verdict, confirming the interim injunction order on the premise that Kesari Singh was free to propagate his views and publish news which it chose to, so long as the trademark of TV Today was not infringed.

© Lex Orbis 2008

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