Disposed

M/s. Sri Venkateshwara Bhakthi v. M/s., Apalya Technologies

Madras HC12 Sept 2018OA/385/2015

Case brief

AI extract

What is this about?

In these three original applications seeking interim injunctions for copyright infringement and passing off, the court disposed of the matters as closed. The second defendant's admission that it ceased using the contested content post-31.12.2011 rendered further hearings unnecessary pending disposal of the main suit.

What did the court decide?

Applications disposed of as closed based on respondent's admitted cessation of infringing activities.

M/s. Sri Venkateshwara Bhakthi Vs M/s., Apalya… — Intellectual Property | Madras HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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(ORDINARY ORIGINAL CIVIL JURISDICTION)

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WEDNESDAY, THE 12th DAY OF SEPTEMBER 2018

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THE HON'BLE MR. JUSTICE M.SUNDAR

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O.A.Nos.385 TO 387 of 2015

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M/s.Sri Venkateshwara Bhakthi Channel No.50, Venkatnarayana Road,

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T.Nagar, Chennai 600 017.

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M/s. Apalya Technologies Private Limited, Plot No.89, #-2-120/76, 2nd Floor, Vaibhav Constructions, Road No.2, Banjara Hills, Hyderabad 500 034.

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M/s. Spice Digital Limited, 60D, Street No.C-5, Sainik Farms, New Delhi 110 062.

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... Respondents/Defendants (in all Original Applications)

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O.A.No.385 of 2015

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Original Application praying that this Hon'ble Court be pleased to grant an interim injunction restraining the respondents, their men, agents successors in business, assigns, representatives or any other person or entity claiming through or under them from in any manner infringing the applicant's copyright by using/offering / distributing / broadcasting/ telecasting/dealing with the contents/ logos/ labels/photographs/ videos / audios of the applicant including local events, sevas, poojas, aartis etc of M/s. Tirumala Tirupati Devasthanams with or without the logos, labels, photographs, videos, audios and to other

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https://hcservices.ecourts.gov.in/hcservices/ embllishments found therein containing the identifying features of applicant and / or that of the M/s.Thirumala

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Tirupati Devasthanams thereby enabling it to be disseminated or transmitted through any other person /persons, through mobile phone networks, satellite networks, satellite channels or in any manner whatsoever, pending disposal of the suit.

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O.A.No.386 of 2015

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Original Application praying that this Hon'ble

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Court be pleased to grant an interim injunction restraining the respondents, their men, agents successors in business, assigns, representatives or any other person or entity claiming through or under them from in any manner using/offering / distributing / broadcasting/ telecasting/dealing with the contents/ logos/

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labels/photographs/ videos / audios of the applicant including local events, sevas, poojas, aartis etc of M/s. Tirumala Tirupati Devasthanams with or without the logos, labels, photographs/videos/audios and to other

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embllishments found therein containing the identifying features of applicant and / or that of the M/s.Thirumala Tirupati Devasthanams thereby passing off and enabling others to pass off by way of disseminating or transmitting it in any manner whatsoever, pending disposal of the suit.

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O.A.No.387 of 2015

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Original Application praying that this Hon'ble Court be pleased to grant an order of mandatory injunction directing the respondents, their men, agents, successors in business, assigns, representatives or any other person or entity claiming through or under them, not to projectthemselves / not grant any license /sub

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license to any third party as proprietors, https://hcservices.ecourts.gov.in/hcservices/ representatives, agents, distributors of the contents of

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the applciant including local events, sevas poojas, aartis etc of the M/s.Tirumala Tirupati Devasthanams with or without the logos, labels, trade description and other identifying features of the applicant and/or that of the M/s. Tirumala Tirupati Devasthanams, or any rights in connection thereto or in any manner connected with the Applicant, pending disposal of the suit.

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These Original Applications coming on this day before this court for hearing, the court made the following order:

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There is a sole plaintiff and there are two defendants in the main suit.

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Sole plaintiff in the main suit is the lone applicant in all these three applications and defendants 1 and 2 in the main suit are respondents 1 and 2 respectively in all these three applications.

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Parties in these three applications are referred to by their respective ranks in the main suit for the sake of convenience and clarity.

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The prayers in these three applications are as follows:

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'....to grant an interim injunction restraining the respondents, their men, agents, successors in business, assigns, representatives or any other person or entity claiming through or under them from in any manner infringing the applicant's copyright by using/ offering/ distributing/ broadcasting/ telecasting/dealing with the https://hcservices.ecourts.gov.in/hcservices/ contents/ logos/ labels/ photographs/

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videos/audios of the applicant including local events, sevas, poojas, aartis, etc of M/s.Tirumala Tirupati Devasthanams with or without the logos, labels, photographs, videos, audios and other embellishments found therein containing the identifying features of applicant and/or that of the M/s.Tirumala Tirupati Devasthanams thereby enabling it to be disseminated or transfmitted through any other person/persons, through mobile phone

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networks, satellite networks, satellite channels or in any manner whatsoever, pending disposal of the suit....'

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(ii) Prayer in O.A.No.386 of 2015:

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'....to grant an interim injunction restraining the respondents, their men, agents, successors in business, assigns, representatives or any other person or entity claiming through or under them from in any manner using/ offering/ distributing/ broadcasting/ telecasting/dealing with the contents/ logos/ labels/ photographs/videos/audios of the applicant's including local events, sevas, poojas, aartis, etc of M/s.Tirumala Tirupati Devasthanams with or without the logos, labels, photographs, videos, audios and other embellishments found therein containing the identifying features of applicant and/or that of the M/s.Tirumala Tirupati Devasthanams thereby passing off

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https://hcservices.ecourts.gov.in/hcservices/

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and enabling others to pass off by way of disseminating or transmitting it in any

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manner whatsoever, pending disposal of the suit....'

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(iii) Prayer in O.A.No.387 of 2015:

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'...to grant an order of mandatory

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injunction directing the respondents, their men, agents, successors in business, assigns, representatives or any other person or entity claiming through or under them, not to project themselves/not grant any license/sub license to any third party as proprietors, representatives, agents, distributors of the contents of the applicant including local events, sevas, poojas, aartis, etc of M/s.Tirumala Tirupati Devasthanams with or without the logos, labels, trade description and other identifying features of applicant and/or that of the M/s.Tirumala Tirupati Devasthanams or any rights in connection thereto or in any manner connected with the applicant, pending disposal of the suit...'

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I have heard Mr.Arun C Mohan, learned counsel on record for sole plaintiff and Mr.G.K.Muthukumar, learned counsel of M/s.GMS Law Associates [Law Firm] for the second defendant. To be noted, the first defendant had entered appearance through a counsel and though the name of the counsel is shown in the cause list, none appears. Vide separate proceedings in the main suit today i.e., 12.09.2018, first defendant has been set ex-parte .

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With regard to the lis itself, it is to be noted https://hcservices.ecourts.gov.in/hcservices/ that this Commercial Division is informed that plaintiff is a company incorporated and registered under Section 25

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of the Companies Act, 1956. It is also submitted that plaintiff company is controlled and managed by Tirumala Tirupati Devasthanam. It is submitted that plaintiff company runs a television channel which is a devotional channel and it goes by the name 'Sri Venkateshwara Bhakthi Channel' ('SVBC' for brevity). Telecast made in SVBC include live devotional, aarti, local events, temple programmes pertaining to Tirumala Tirupati Devesthanam is counsel's say.

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Under such circumstances, plaintiff has entered into certain licensing agreement. It is the case of the plaintiff that it has copyright in the content of aforesaid telecast in SVBC and that the same has been infringed. In the course of the infringement, Tirumala Tirupati Devesthanams (TTD) (logo), there is also passing off qua TTD is learned counsel's further say. It is submitted that further license which the second defendant has entered into is impermissible. These broadly are the four corners of this lis.

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Under such circumstances, this suit suit has been pending for over two years for now. The plaint was presented on 25.03.2015. To be precise, 2½ years. Pleadings are complete in the main suit and the process of inspection of documents followed by admission and

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denial under Rules 3 and 4 respectively of Order 11 of amended 'The Code of Civil Procedure, 1908' ('C.P.C.' for brevity) as amended by 'The Commercial Courts Act, 2015' ('said Act' for brevity) are to commence from today.

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In this context, it may be appropriate to read this order in conjunction with and in continuation of proceedings in the main suit, which reads as follows:

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'There is a sole plaintiff and there

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https://hcservices.ecourts.gov.in/hcservices/

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are two defendants in the instant suit.

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2. Mr.Arun C Mohan, learned counsel on

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record for the sole plaintiff and Mr.G.K.Muthukumar, learned counsel of M/s.GMS Law Associates [Law Firm] on behalf of second defendant are before this Commercial Division. On behalf of the first defendant, a counsel has entered appearance and the name of the counsel is shown in the cause list, but none appears. Both the aforesaid counsel before this Commercial Division today submit that learned counsel for first defendant has not been appearing in the previous hearings also.

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3. In the aforesaid backdrop, I heard both the aforesaid learned counsel on jurisdiction of this Commercial Division qua this suit.

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4. Common submission is made in unison that the entire suit pertains to complaints of infringement of copy right, passing off logo and some licensing, which according to the plaintiff is not permissible.

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5. Short facts are that the plaintiff is a company incorporated and registered under Section 25 of the Companies Act, 1956. It is submitted that plaintiff company is controlled and managed by Tirumala Tirupati Devasthanam. Plaintiff company runs a television channel, which goes by the name 'Sri Venkateshwara Bhakthi Channel' ('SVBC' for brevity). It is submitted that SVBC telecasts live devotional, aarti, local events, temple

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https://hcservices.ecourts.gov.in/hcservices/

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programmes pertaining to Tirumala Tirupati Devasthanam.

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6. The entire lis is with regard to certain licensing agreement and further telecast/distribution of the aforesaid content. Both the learned counsel on the aforesaid basis submit that this suit inter alia pertains to a complaint of infringement of copy right and passing off qua Tirumala Tirupati Devasthanam logo also. On this basis, it is submitted that sub-section (2) of Section 62 of Copyright Act, 1957 and sub-section (1) of Section 134 of Trade Marks Act, 1999 operate. In the light of these two provisions, this Commercial Division will have jurisdiction under first proviso to Section 7 of 'The Commercial Courts Act, 2015' ('said Act' for brevity) to entertain this suit, is their say.

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7. After hearing both learned counsel, I perused the plaint and there is no difficulty in accepting the aforesaid common submission.

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8. Jurisdiction of this Commercial Division qua this suit thus determined.

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9. Having determined jurisdiction, I now turn to the stage of this suit. It is not in dispute that pleadings are complete, as the second defendant has filed written

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statement. As mentioned supra, first defendant has not been appearing before this Commercial Division, which is the common say of the aforesaid counsel. Today

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also there is no representation for the first defendant. First defendant is set ex-parte.

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https://hcservices.ecourts.gov.in/hcservices/

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10. Now pleadings are complete, the next procedural steps under the amended 'The Code of Civil Procedure, 1908' ('C.P.C' for brevity) as amended by the said Act are inspection of documents followed by admission and denial under Rules 3 and 4 respectively of Order XI of amended C.P.C.

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11. Both learned counsel undertake to complete the aforesaid exercise within four weeks from today i.e., by 10.10.2018.

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12. List this suit on 11.10.2018.'

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In the aforesaid scenario, what turns out to be a clincher is an averment made by the second defendant in a common counter affidavit dated 13.07.2018 made in all these three applications. This averment of the second defendant is contained in sub paragraph (c) of paragraph 3 of the counter affidavit and the relevant portion of such paragraph (c) of paragraph 3 of the counter affidavit of second defendant reads as follows:

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fact that the content in question has not been utilised by the Respondent No.2 post 31.12.2011....'

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counsel for second defendant today in the hearing that the aforesaid is the obtaining position even as of today. It is also submitted that it is not only the obtaining position as of today, but this position is operating post 31.12.2011 continuously until this day. On instructions, it is submitted that this obtaining position will continue till disposal of main suit. https://hcservices.ecourts.gov.in/hcservices/

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This douses the anxiety of the applicant in the instant case.

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In the light of the trajectory of the main suit, it will serve the purpose of the parties well to expedite the main suit, by applying the swift and stiff time lines that have been provided for in amended C.P.C. as amended by the said Act.

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Under the aforesaid circumstances, no useful

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purpose would be served by keeping this application pending and it would suffice if the aforesaid extracted/reproduced averment/ stand of the second defendant is recorded.

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The aforesaid averment and the stand which flows from the same are recorded, all these three applications are disposed of as closed.

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Sd/.M.S.J 12.09.2018

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//Certified to be a true copy//

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Dated this the th day of 2018.

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KY/28.09.2018 COURT OFFICER

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From 25.09.2008 the Registry is issuing certified copies

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of the Order/Judgment Decree in this format.

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https://hcservices.ecourts.gov.in/hcservices/

M/s. Sri Venkateshwara Bhakthi v. M/s., Apalya Technologies

Case brief

What is this about?

What did the court decide?

M/s. Sri Venkateshwara Bhakthi v. M/s., Apalya Technologies

Case brief

What is this about?

What did the court decide?

What the court decided

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