The elements of a good advertisement are likely to be imitated or copied by others. So, businesses need to be well-read about the various IP rights that can come into play when drafting and finalizing the content for an advertisement or running an advertising campaign. Businesses are finding more than ever inventive ways to advertise their products and services. Each level of increased sophistication and creativity will occasion additional IP rights. The simplest advertisement may involve only the two primary frameworks i.e., copyright and/or trademark rights associated with a logo; whereas advanced audio-visual works may raise many complex IP related concepts. In the recent judgment of Delhi High court, it was held that distinctive elements in advertising campaigns can be protected by the courts under intellectual property law.
In the case of Bright Lifecare Pvt Ltd v Vini Cosmetics Pvt Ltd and Anr where plaintiff, Bright Lifecare Pvt Ltd is a company engaged in the business of manufacturing and trading of supplements for gym professionals, nutraceuticals and related food products. One of the products of the Plaintiff is a supplement which is sold in a series of products under the name MuscleBlaze (MB), which is protected under trademarks. Defendant no. 1 is a company involved in the business of manufacturing and merchandising of pharmaceuticals, ayurvedic and cosmetic products under the trade mark 'VINI'. It has a presence in the deodorant and perfume area in the Indian market.
The Plaintiff states that in March 2018, it started an advertising campaign in the form of a videoplay titled "ZIDDI HOON MAIN" on various online platforms. The videos released by the Plaintiff used various forms of the words 'ZIDD' and 'ZIDDI' to describe the quality of persons who do not give up despite various challenges. In January 2022, the Plaintiff came across such advertisements of a deodorant product named 'REALMAN' under Defendant No.1 which, as per the Plaintiff, were conceptually as well as visually similar to the Plaintiff's advertisements. The Plaintiff additionally stated that for the said advertisement campaign, Defendant No.1 has adopted the mark 'ZIDDI PERFUME' which is allegedly deceptively similar to the mark of the Plaintiff. It is the case of the Plaintiff that by the impugned adoption and use of similar scenes in the advertisements and the mark 'ZIDDI PERFUME'. In addition to the mark and taglines, the slogans such as "PHIRSEZIDDKAR" are used which are written in yellow and white color in Plaintiff's advertisement and the product.
Vini Cosmetics Pvt. Ltd. manufactures, promotes and sells 'REAL MEN MANLY FRAGRANCE' deodorants for men, which are described as 'ZIDDI PERFUME' in all of their commercials which are disputed in the present suit. The ad used by the defendant's theme is that the product of the Defendant i.e., perfume/deodorant can counter the odor resulting from sweating. The words 'ZIDDI PERFUME' are shown which are written in yellow color with black background towards the end of the commercial. Defendant's product and use of the impugned mark 'ZIDDI'.
On seeing the facts of the commercials, it can be made out that there are similarities such as various taglines using the word 'ZIDDI' and the style of writing in a black and yellow color combination by Plaintiff and the defendant. It is submitted by the Plaintiff that the mark of the Plaintiff is registered in Class 38 and Class 44 and which include the advertisement services. The defendant argues in the said case that Plaintiff and Defendant No.1 are not competitors and the Plaintiff cannot claim any monopoly on the use of the word 'ZIDD' or 'ZIDDI' as the same has been used in earlier campaigns and films.
The main contention dealt in the present case is whether advertising campaigns of such a nature are capable of getting protection. In order to consider this issue, court checked whether the elements which are allegedly infringed of the Plaintiff's campaign merely constitute an idea or do they constitute expression of an idea. The settled legal position is that there can be no copyright in an idea but only in its expression. It was held that:
"However, a mere idea behind the commercial is not protectable. Only the elements of expression incorporated in the commercial are protectable. Parties which manufacture and sell products expend enormous time, effort, energy and investment in creation of advertising campaigns. They usually engage creative agencies and advertising agencies who render them the services for making these campaigns. Such campaigns are a result of painstaking effort of creative directors, artists, lyricists, slogan writers, cartoonists etc., who work in collaboration with marketing teams for making such campaigns. Thus, these campaigns and commercials are extremely thought out, deliberate and also determine the success/failure of a product. Even a ten second commercial involves enormous creativity and originality. Thus, an advertising campaign including commercials are undoubtedly protectable under intellectual property law."
Regarding the similarity between both the campaigns, the court held that "The overall theme of dark setting, persons working out, use of 'ZIDDI' and 'ZIDD' and colour of yellow and black is present in the Plaintiff's and Defendant No.1's campaign. The third-party videos relied upon by Defendant No.1 using the mark 'ZIDDI' or the concept of 'ZIDD' are completely distinct from the Plaintiff's commercials and Defendant No.1's impugned commercials. There is no doubt that no monopoly can be granted over the concept and idea of 'ZIDD' and 'ZIDDI'. However, the portrayal of the same by picking almost identical elements, cannot be completely ignored by the Court."
In regard to the argument of the defense of no monopoly of the plaintiff over the word ziddi, the court held that "There can be no monopoly or exclusivity on the use of the word 'ZIDD' and 'ZIDDI' as an idea to show perseverance. However, the portrayal has to be different. There can also be no monopoly or exclusivity on showing a muscular person working out in a gym but the expression of the idea has to be different. Again, the portrayal of a person using a punching bag can also not be monopolized but the expression has to be different. In the impugned commercials, in the opinion of the Court, the expression is a colorable imitation of the Plaintiff's advertising commercial."
Therefore, Court held that the two impugned commercials which are evocative of and very similar to Plaintiff's campaign are liable to be restrained in their present form and defendants are asked to pull down the two impugned commercials from YouTube and other platforms where they are available for viewing by the public.
Conclusion
In this case, court held that mere campaign is not protectable but certain elements which are expressed and incorporated are protectable. For example, in the present case are the expression and the context in which 'ZIDDI' is used by the plaintiff and the color theme of yellow and white. The court also opined that these campaigns are a result of the creativity of various people like, scrip writer, director, lyricist, designers, etc. Therefore, certain distinctive elements of an ad campaign are protectable under Intellectual Property rights. There can be no monopoly over the terms like 'ZIDDI' but the court is of the view that the portrayal has to be different, there should be no imitation.
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