Recently in the Bombay High Court, Plex had moved to an Application to seek an injunction alleging passing off and damages for misleading the consumer to believe that Zee had tied up with Plex. The matter was heard by Justice G.S Patel, where the restraint sought by the Plaintiff against the Defendant's use of the word "PLEX" in an online movie channel service that had to be launched on the 2nd of October, 2020.
The claim was sought against Zee, the multi-media house. It is claimed that on the 1st of September 2020, Zee announced its proposed launch about a month later of a 'cinema-to-home' pay-per-view service, which means that new/fresh movies were releases will be made available to subscribers, but in way where the viewer must pay for each viewing, rather than buying a ticket to a cinema hall.
It is to be noted that Plex's primary services/combination of software and hardware that allow a user/subscriber to share media content over what is called a media server. Further, Plex has claimed that they have obtained trade marks in several jurisdictions, except India, however, have their first registered user in India on 23rd of July 2008, and over time has build up a number of users, and reputation. it is claimed that use of the words "Zee" and "Plex" as two separate words at various public forums has generated mass confusion and deception among the public.
However, it was noted by the Court that there is obvious difference between the two services, since Plex claims "curated content" and also allows the user to upload their own content. Whereas, the ZEEPLEX service seemed more different to the Hon'ble Court, where the user just selects a movie from a list. Further, Zee is not using the the word as a standalone word but instead as a suffix.
The court held that no such case of passing off has been made out since, for one, as per the Court, Zee has a massive reputation of its own, especially in the entertainment industry. The Court held that by merely pointing to other reputed players in the field is insufficient, since there is no credit in saying
"if Sony provides content and has a reputation, since I, too, provide content, I must be presumed to have an equivalent reputation. So if Sony could maintain such an action and get an order, so must I." There is no one-size-fits-all approach in these matters. Every claimant in a passing off action stands or falls on his own merits and case.
The Court further also held that, "Where a plaintiff has had enough notice and yet chooses to move at the eleventh hour - and makes no allowance at all for any adjustment that may be required - the plaintiff must be prepared to face the consequences"
The Court has granted a leave for amendment to the Plaintiff, and asked the Defendant to file an Affidavit in reply in the shortest possible time.
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