IN

THE HIGH COURT OF DELHI

AT
NEW DELHI
O/S NO....................... 2007

APPLICANT - NEWLY FORMED ASSOCIATION OF PRODUCERS

V.

RESPONDENT - PRODUCER A

AUGUST 2007

ON SUBMISSION
TO
THE HIGH COURT OF DELHI

MEMORIAL FOR APPLICANT

 IN
THE HIGH COURT OF DELHI
AT
NEW DELHI
O/S NO....................... 2007

IN THE MATTER OF : SPECIAL BENCH CONSTITUTED

BY THE HIGH COURT

APPLICANT - NEWLY FORMED ASSOCIATION OF PRODUCERS

V.

RESPONDENT - PRODUCER- A

AUGUST 2007

ON SUBMISSION
TO
THE HIGH COURT OF DELHI

MEMORIAL FOR APPLICANT

(COUNSEL FOR APPLICANT)
Table of Contents

T A B L E O F C O N T E N T S

INTRODUCTION

INDEX OF AUTHORITIES

STATEMENT OF JURISDICTION

STATEMENT OF FACTS

STATEMENT OF ISSUES

SUMMARY OF ARGUMENTS

ARGUMENTS ADVANCED

CONCLUSION AND PRAYER

Introduction
I

I N T R O D U C T I O N

THE APPLICANT HAS THE HONOUR TO SUBMIT THIS MEMORIAL IN

CONFIRMITY WITH THE CIVIL PROCEDURE CODE, 1908. IT SETS
FORTH THE GROUNDS OF FACTS AND LAW ON WHICH THE CLAIMS
ARE MADE.
Index of Authorities
II

I N D E X O F A U T H O R I T I E S

ARTICLES“

1.Trade Mark Infringement; the irrelelavance of evidence of copying to secondary meaning”

by Timothy R. M. Bryant

2. Dilutin Redifined for the year 2000,Jerre B.Swann,SR I.P.L.R 2001 AT p.343
3.A Practitioners Guide to Copyright Law by Bruce P. Keller & Jeffrey P. Cunard
4., Lights Camera, Fiction! : Analyzing the Legal Framework for Protecting
the Docudrama in Canada by Nighia D. NaguyenBY CEDO; 18 AIPLA Q,J
193;)]

BOOKS

1.David Bainbridge,IPR.,, 4TH edition,1999

2.Cases and Mayerials on intellectual property, by W.R. Cornish. 2 nd edition; Universal Law
publishing co.pvt. ltd.,2004
.3. W.R.Cornish, Intellectual Property,Patents,Copyrights,Trademarks And Allied Rights;4 th
edn.,1999;Sweet And Maxwel
4.Intellectual property law” by P. Narayan 2nd edition,1999
5.Teena Hart and Linda Fazzani,”Intellectual Property Law”,(2nd edn.2000),p.19

MISCELLANEOUS

BLACK’S LAW DICTIONARY(HENERY CAMPBELL BLACK, ED., MINNESOTA: WEST

PUBLISHING CO. 7 EDN 1990)

HALSBURYS LAW OF ENGLAND(LONDON: BUTTERWORTHS , 1997)

WEB SITES
www.lexis.com
www.legalpundits.com
www.westlaw.com
www.Supremecourtonline.com
Table of Cases
III

T A B L E O F C A S E S

1. Americam Racing Equipment Inc v. Zmith Corp.,24 USPQ 2d 1860 (CD Calif1992)
2. Bailey v. Namol Pty Ltd, (1993) 24 IPR 461 at 477
3. Barbara Taylor Bradford v. Sahara Media Entertainment Ltd 2004(28) PTC474 (Cal)
4. Barbara Taylor Bradford v. Sahara media Entertainment Ltd. 2004(28) PTC (Cal)
5. Bata India Ltd v. M/s Pyare Lal and Co AIR 1985 All 2423
6. Biswanath v. Hindustan Metal (1979) 2 SCC 511
7. Borthwick v. The evening post [1883] 37 Ch D,p.462
8. British Broadcasting Corp v. Talbot Motor Co.ltd(1981)FSR 228
9. Bulmer v. Bollinger(1978) RPC 79
10. Century v. Roshan Lal AIR 1978 Del 250
11. Diamond Comic Pvt. Ltd. and Anr v. Raja Pocket Books and Ors 2005 (31) PTC 378(Del)
12. Ellora v. Banarasi Das,AIR 1980 Delhi 254 at 260
13. Elvis Presley Enterprises Inc v. Shaw (t/as ELVISLY YOURS LTD) 47 I.P.R 441
14. Fateh Singh Mehta v. O.P. Singhal, AIR 1990 Raj 8
15. General Tyre and Rubber Company v. Firestone Tyre and Rubber Company ltd. (1972) RPC
457
16. George william Findlay v. Rimfire Films ltd 18 I.P.R 59
17. Gillette (UK) Ltd. v. Edenwest(1994) RPC 279
18. Graham v. John Deere Co., 383 U.S.1, 17 (1966)
19. Graham v. John Deere Co.,383 US 1(1966)
20. Harman Pictures v. Osborne, (1967) 2 All ER 324 at 328
21. Hexagon v. Australian Broadcasting,(1976)RPC 628 at 645
22. Hindustan Lever Ltd. v. Biswanath Hoseiry 2002(25) PTC 86 (Del)
23. Hoechst v. Unichem (1969) RPC 55 at 67 (Bom)
24. Imaf S.P,A v. J.C.Penny co. 26 USPQ2d 1667,1671(SDNY1992)
25. Irvine and Others v. Talksport Ltd., 2002 FCA 367
26. Jagsonpal Pharmaceuticals v. Senor Laboratories, (1996) PTC 547 at 552 (Del)
27. King features Syndicate v. Kleeman, (1941) 58 RPC 207
28. L.B.Plastics v. Swish Products, (1979) RPC 551
29. Lakshmi V Patel v. Chetanbhai Shah ,2002(3)SCC 65
30. Living Media India Limited v. Jitender V. Jain and Anr. 2002(25) PTC 61 (Del)
31. M/s Rightway v. M/s Rightways Footwear,AIR 1986 J&K 71
32. Mannu Bhandari v.Kala Vikas Pictures Pvt Ltd ,AIR 1987 Del 13
33. Montary Overseas v.Montari Ltd ,1996 PTC 142
34. Morgan Grampian v. Training Personne(1992) F.S.R 267
35. Nicholas v. Universal Picture Corp. , 45 F2d 119 at 121 (2nd Cir. 1930)
36. Parer Knoll v. Knoll International(1962) RPC 265 (H.L)
37. Pete Waterman Ltd v.CBS United Kingdom (1993)ELMR 27
38. Procea v. Evans(1951)68 RPC 210
39. R. v. Patent’s Appeal Tribunal Ex Parte Beechams Group Ltd,(1973)1 All ER 627
40. R.G. Anand v. M/s. Deluxe Films, AIR 1978 SC 1613
41. Rai Toys Industries v. Munnair Printing Press (1982) PTC 85 at 87(Del)
42. Ravenscroft v. Herbert,54 (1980) RPC 193
43. Re Allen,343F.2d482, 487(C.C.P.A. 1965)
44. Reddaway v. Banham(1896) A.C.199
IV
45. Rediff Communication v. Cyber Booth,2000 PTC 209(Bom)
46. Rehyer v. Childrens Television Workshop, 533 F 2d 87, 91(2nd Cir.)
47. Richdel, Inc. v. Sunspool Corp.714 F.2d1573,1580 (Fed.Cir)1983)
48. Santa’s Workshop,Inc. v. Sterling,2 A.D 2d 262
49. SIBIA Nuerosciences Inc. v. Cadus Pharm. Corp. ,225 F.3d 1349
50. Spalding v. Gamage, (1915) 32 RPC 273 at 284
51. Star India Pvt. Ltd. v. Leo Burnett(India) Pvt. Ltd. 2003 (27)PTC (Bom)
52. Sutherland Publishing Co. v. Caxton Publishing Co.[1936]1 All ER 177
53. Twentieth Century Fox Film Corp v. Die Hard PTY LTD 52 I.P.R 455
54. Unilever PLC v. Grand Continental Food Co. PTY Ltd 61 I.P.R 186 IP Australia
55. United Biscuits (UK)Ltd v. Asda Stores Ltd(1997)RPC 513
56. Vidya Bhushhan Jayan v.Collector of Customs(Sea imports) and another 2006(32)PTC 480
(Mad)
57. Wagamama Ltd v.City Centre Restaurants plc (1995)FSR 513
58. Warner Bros., Inc., Film Export, A. G. and DC Comics, Inc. v. American Broadcasting
Companies, Inc v. Stephen J Cannel Productions ,654 f.2d 204.US Court of Appeals,Second
Circuit.
59. Wham- O- Mfg v. Lincoln (1985) RPC 125
60. Yahoo Inc v. Akash Arora, 1999 PTC(19) 201
Statement of Jurisdiction

STATEMENT OF JURISDICTION

THE APPLICANT HAS THE HONOUR TO SUBMIT THIS

MEMORIAL OF THE PRESENT CASE BEFORE THE SPECIAL
BENCH CONSTITUTED BY THE DELHI HIGH COURT.
Statement of Facts
VI

S T A T E M E N T O F F A C T S

Producer A engaged a team of students to research possible parameters that could have defined the success of 50
pre-determined blockbusters. The parameters that are to be examined are lead and supporting actors, movie
theme, music ,dialogues ,extent of special effects used, technical finesse etc. The team of students revisits the
films, interviews the Producers and Directors, screens newspaper articles to create a list of such “success
factors”. Producer A identifies a few elements of relevance in modern day film making.  Such elements are then
regrouped and evolved the form of a “success formula” and applied for protection under the Patents Act. Based
on the Success Formula evolved by Producer A, a protocol was developed having pre-defined steps with a
dynamic database to arrive at the said success formula.
The Producer additionally applies for a copyright in the said formula as an original artistic work as “A success
formula for film making” and the language of the work is indicated as “Bollywood Lingo”.The Producer
approaches a few lyrists and playback singers from the past blockbusters and calls upon them to revisit the past
hits and adapt the lyrics and songs for the new production through use of modern day instruments. A film plot is
made, casting characters of the past, with the same screen names for the new movie. The Producer adopts a
name that emerges from an amalgamation of 3 hit titles and applies separately for a trademark registration for
his new title. 
The movie, when released proves to be a hit .All promotional activities are with reference to the past characters.
It evokes nostalgia in the viewers and dialogues used appear to be the same although on a closer scrutiny are
found to emanate from an effective use of thesaurus.
A suit for injunction is instituted against Producer A by a newly formed association of past Producers and
claiming:
(i)That the title of the movie constitutes an infringement of trademark rights;
(ii) There is a violation of copyright as the essential theme and the arrangement of characters has been
impersonated and there is substantial copying of a developed idea;
(iii)The patent applied for protection by Producer A with variable claims is invalid on the ground of obviousness
even though the patent has not yet been granted and no objection on the lack of obviousness has been raised by
the Patent Office.

The filing of the suit causes a dip in box office collections and increase in the re-screening of past hits.
(iv) The defendant files a counter suit against the plaintiff for defamation caused by negative publicity and
contests the validity of trademark rights, copyright and the patent.  Both parties also claim damages against each
other citing their respective parameters for evolution of damages.
Statement of Issues
VII

S T A T E M E N T O F I S S U E S

I. WHETHER THE DEFENDANT HAS VIOLATED THE

RADEMARK OF THE APPLICANT

II. WHETHER THE DEFENDANT HAS VIOLATED THE

COPYRIGHT OF THE APPLICANT

III. WHETHER THE DEFENDANT’S FORMULA CAN BE

PATENTED

IV. WHETHER THE DEFENDANT IS LIABLE TO PAY

DAMAGES
 Summary of Arguments
VIII

S U M M A R Y O F A R G U M E N T S

A. THE TITLE OF THE MOVIE CONSTITUTES VIOLATION OF TRADEMARK.

 TRADE MARK RIGHTS OF THE APPLICANTS IS VIOLATED ON THE

GROUNDS OF PASSING OFF
 Non registration is not a bar to the action of passing off
 Passing off can be claimed even in the case of unintentional passing off
 Prior User has a right over the later user.
 The applicant has resorted to misrepresentation
 THE APPLICANT IS ENTITLED TO PROTECTION UNDER THE AMBIT
OF SECONDARY MEANING
 The applicant’s action amounts to dilution
 The applicant is not entitled to trademark registration
B. THERE IS VIOLATION OF COPYRIGHT AS THE ESSENTIAL THEME IS COPIED
 The impersonation of characters violates copyright law.
 The respondent is liable for literal copying of the film
 The layman observer test confirms copyright violation in the instant case
 The CPP enjoys moral rights in the instant case
 Copyright law does not permit adaptation in cinematography
C .THE SUCCESS FORMULA DOES NOT QUALIFY FOR PATENT
 THE SUCCESS FORMULA IS NOT ELIGIBLE FOR A GRANT OF
PATENT

 THE SUCCESS FORMULA DOES NOT QUALIFY THE NON OBVIOUSNESS CRITERION
 The formula under consideration for patent has been a prior knowledge
 Obvious to one skilled in the art
D. PRODUCER A IS LIABLE TO PAY DAMAGES TO THE CONSORTIUM

 DAMAGES FOR TRADEMARK VIOLATION

 DAMAGES FOR COPYRIGHT VIOLATION
Arguments Advanced
1

A R G U M E N T S A D V A N C E D

B.THE TITLE OF THE MOVIE CONSTITUTES A VIOLATION OF TRADEMARK.

A.(a) TRADE MARK RIGHTS OF THE APPLICANTS IS VIOLATED ON THE GROUNDS

OF PASSING OFF
A.(a)(i) Non registration is not a bar to the action of passing off
Where an action for passing off is based on the alleged copying of the plaintiff’s trade mark, the
fact that such a mark is not registered under the act is no bar to success if the ingredients of passing
off are established.1 The litmus test for trademarks is whether the use of the second mark is likely to
cause confusion on the part of the public, including a likelihood of association 2 creation of confusion
is sufficient to constitute passing off
The misrepresentation or deception is not necessarily limited to n exact copy of a name, mark
or data. Similarity sufficient to result in confusion will do 3.
In the instant case, the title of the new movie, being a copy of the fragments of past movies,
confounds and deceives the viewers to associate it with the former blockbusters.
A.(a)(ii) Passing off can be claimed even in the case of an unintentional passing off.
Further, Relief can be given when the misrepresentation is unintentional 4.
It was held in Living Media India limited v. Jitender V. Jain and Anr. 5
Adoption of a similar or deceptively similar mark amounts to passing off even if it has no
physical market, goodwill or reputation of a product or person pervasive. It has to protect the goodwill
wherever it is threatened6. Therefore, granting protection to the CPP in spite of these movies being
screened in the past.
A.(a)(iii) Prior User has a right over the later user.
In a passing off action, a prior user has rights even over a latter use by registered owner.
The plaintiff who is the prior user will be granted interim injunction. 7 Trade mark is property right, an
invasion of which should be protected and the balance of convenience would obviously be in favor of
the first user of the mark.8
The ground of passing off is established in this case by the fact that the consortium is the prior
user of the term, hence protecting its property right to the term.
A(a)(iv) The applicant has resorted to misrepresentation

1
Century v. Roshan Lal AIR 1978 Del 250 , “It is well settled ,the passing off is not based on a registered trademark but is an action to pass
off goods as its own while it belongs to another”, Bata India Ltd v. M/s Pyare Lal and Co AIR 1985 All 242,
2
David Bainbridge,IPR., 4TH edition,1999 ‘Passing off,’p.613,Montary Overseas v. Montari Ltd ,1996 PTC 142,Lakshmi V Patel
v.Chetanbhai Shah ,2002(3)SCC 65 ,Wagamama Ltd v. City Centre Restaurants plc (1995)FSR 513; see also George William Findlay v.
Rimfire Films ltd 18 I.P.R 59, www.lexis.com
3
David Bainbridge,IPR....Passing off,p.613,For example the use of another sea bird
(a puffin instead of a penguin and similar coloured get up in United Biscuits (UK)Ltd v.Asda Stores Ltd(1997)RPC 513
4
British Broadcasting Corp v.Talbot Motor Co.ltd(1981)FSR 228,See also Pete Waterman Ltd v.CBS United Kingdom (1993)ELMR 27
5
2002(25) PTC 61 (del)
6
M/s Rightway v. M/s Rightways Footwear, AIR 1986 J&K 71,See also Yahoo Inc v. Akash Arora 1999 PTC(19) 201
7
Jagsonpal Pharnaceuticals v. Senor Laboratories (1996) PTC 547 at 552 (Del)
8
.Century v. Roshan Lal AIR 1978 Delhi 250 at 255
Misrepresentation by the use of a mark, name or get-up or even direct misrepresentation without
infringement of any trademark comes within the ambit of passing off action. 9 In Rediff
Comunication v. Cyber Booth10 it was observed that the real question in each case is whether there is
as a result of misrepresentation, a real likelihood of confusion or deception of the public. And if so,
then relief shall be granted.
In Ellora v. Banarasi Das11, it was held “ it is sufficient if the purchaser is are likely to be
misled in thinking that the defendants’ firm has an ‘Intimate connection’ with the plaintiffs or that the
defendants’ business is a branch of the plaintiffs or ‘somehow mixed up’ with the plaintiffs’ business.
Even ‘any connection’ with the plaintiffs is misrepresentation sufficient to constitute the tort. In the
case of Hexagon v. Australian Broadcasting 12, the court confirmed passing off where the character
portrayed in the movie “alvin purple” was telecast in a television series with the identical name.
“The average movie audience has perceived an intimate and nostalgic association of the new
movie with the yesteryears’ blockbusters. As an effect of the deceptive title and related promotional
activities.”13
If someone acquires a valuable reputation or goodwill, the law of passing off will protect it
from unlicensed use by the other parties. The law will vindicate the claimant’s exclusive right to the
reputation or goodwill. It will not allow others to so use goodwill as to reduce, blur or diminish its
exclusivity.14Here the CPP is entitled to the exclusive right to their goodwill ,generated by their past
success stories.
A.(b) THE APPLICANT IS ENTITLED TO PROTECTION UNDER THE AMBIT OF
SECONDARY MEANING
The titles of motion picture films should also be capable of functioning as trademarks. Whether
particular movie titles will do function as trademarks will naturally depend on the evidence how such
indicia have been used and whether such indicia have in fact developed the trademark significance 15
All literary titles whether single work or multiple work literary titles, cannot garner instant
trademark protection upon creation, as inherently distinctive. However, the court may find that the
work has secondary meaning and therefore can be afforded trademark protection. 16
A number of factors are decisive in recognizing a secondary meaning, however no single factor
is determinative and not all need be proved. 17The factors are purchaser association with producer,
degree or manner of advertising the term in question, exclusivity of use. 18
The title of the new film created by Producer A is an amalgamation of titles of past block
busters which are well recognized and remembered by the audience, the usage of the terms leads to an
immediate association with the producers of the past movies and the advertising has been undertaken
with reference to the characters of the past, 19thereby satisfying the criterion for secondary meaning.
The evidence that a competitor has copied the plaintiff’s trademark is sufficient to prove that
the plaintiff’s trademark had acquired secondary meaning and deserves protection. 20It is a question of

9
Spalding v. Gamage, (1915) 32 RPC 273 at 284;see also P.Narayanan
10
2000 PTC 209(Bom),See also Yahoo Inc. v.Akash Arora 1999 PTC 210
11
AIR 1980 Delhi 254 at 260
12
(1976)RPC 628 at 645
13
Statement of facts,p.2
14
Irvine and Others v. Talksport Ltd., 2002 FCA 367
15
Twentieth Century Fox Film Corp v.Die Hard PTY LTD 52 I.P.R 455
16
Santa’s Workshop,inc. v. Sterling,2 A.D 2d 262;see also “Trade Mark Infringement; the irrelelavance of evidence of copying to
secondary meaning” by Timothy R. M. Bryant, Intellectual Property Cases And Materials by Margret Barrett;1995;Amaerican Case book
Series, West Publishing Co.
17
Imaf S.p,A v. J.C.Penny co. 26 USPQ2d 1667,1671(SDNY1992);see also Secondary Meaning , pg 1060, vol.83 Trdede Mark Reporter.
18
Americam Racing Equipment Inc v. Zmith Corp.,24 USPQ 2d 1860,1862 (CD Calif1992) , see also pg 1061. Vol.83 TMR; ‘ trade mark
for perodicals’;34 T.M.R 159,www.lexis;Morgan Grampian v.Training Personne(1992) F.S.R 267
19
Statement of facts, p3
20
Trademark Infringement: The Irrelevance of Evidence of Copying to Secondary Meaning, Timothy R.M. Bryant. “The establishment of
the fact that use of the term as an indicator of the source gives it a secondary meaning”. “Common Law liability”, pg.478. W.R.Cornish,
Intellectual Property,Patents,Copyrights,Trademarks And Allied Rights;4 th edn.,1999;Sweet And Maxwell,; see also Reddaway v.
Banham(1896) A.C.199 at 204
fact, to be decided on the evidence; whether it is proved that a name or a mark has acquired a
secondary meaning.21
A has used the titles of the past block busters ,exploiting their hard earned goodwill. Producer A
adopts a name that emerges from an amalgamation of 3 hit titles and applies separately for a trademark
registration for his new title.This qualifies it for trademark protection.

A.(c)The applicant’s action amounts to dilution

Dilution is founded in the idea that investments in the future of a brand that make it appealing
to the consumers should not be undermined by others who seek a free ride,whether on the work that
produce the goodwill underlying the mark or on the mark itself 22
Violation of trademark is also leading to dilution of the distinctive character of plaintiff’s
trademark and their trademarks are being debased and eroded. 23
The quality expected by the viewers, which has been set by the past movies would be lacking in
the new movie, hence diluting the goodwill of the CPP.
A(d)The applicant is not entitled to trademark registration
An application for the registration of a trademark in respect of a particular goods or services
must be rejected if, because of some connotation that the trademark or sign contained in the trademark
has, the use of trademark in relation to those goods and services would be likely to deceive or cause
confusion.24
It shall not be lawful to register a trademark or part of a trademark any matter the use of which
would, by reason of its being likely to deceive or cause confusion or otherwise be disentitled to
protection in a court of justice25
The defendants have has directly lifted and merged the titles of the three past blockbusters,
which mislead public perception .Thus, disqualifying them trademark registration of the title.

B. THERE IS VIOLATION OF COPYRIGHT AS THE ESSENTIAL THEME IS COPIED

B.(a) THE NEW FILM IS THE SUBSTANTIAL COPYING OF A DEVELOPED IDEA
Though there is no copyright in an idea ,subject matter, themes, plots...an author can claim
copyright protection in the form, manner and arrangement and expression of the idea. 26
Any person produces or reproduces the work or any substantial part thereof in any material
form of the work of anothrr person, is committing an infringement of copyright. 27
In the instant case, the manner, expression, story line et al of the new movie are a substantial
copying of the works of the past, that have been blend together. This proves the substantial similarity
test, thereby prima facie establishing infringement by A.
B.(a)(i) The impersonation of characters violates copyright law:
A Particular character and its particular attributes may so dominate the detail and particularized
sequences of incidents that the senses of its form and thereby may gain copyright protection. 28

21
Parer Knoll v. Knoll internationl(1962) RPC 265 (H.L) ;see also Cases and Materials on Intellectual Property, by W.R. Cornish. 2 nd
edition; Universal Law publishing co.pvt. ltd.,2004
22
Dilutin Redifined for the year 2000,Jerre B.Swann,SR I.P.L.R 2001 AT p.343
23
Vidya Bhushhan Jayan v.Collector of Customs(Sea imports) and another 2006(32)PTC 480 (Mad)
24
Unilever PLC V. Grand Continental Food Co PTY Ltd 61 I.P.R 186 IP Australia
25
Elvis Presley Enterprises Inc v.Shaw (t/as ELVISLY YOURS LTD) 47 I.P.R 441
26
Barbara Taylor Bradford v. Sahara media Entertainment Ltd. 2004(28) PTC (Cal), Rehyer v. Childrens Television Workshop, 533 F 2d
87, 91(2nd Cir.)
27
Fateh Singh Mehta v. O.P. Singhal, AIR 1990 Raj 8, Wham- O- Mfg v. Lincoln (1985) RPC 125
“ Infringement of copyright cannot be avoided by a difference of dimension or in exact reproduction where it was proved that a substantial
part of the work has been copyright work had been copied.’’
28
Nicholas v. Universal Picture Corp. , 45 F2d 119 at 121 (2nd Cir. 1930), Diamond Comic Pvt. Ltd. and Anr v. Raja Pocket Books and Ors
2005 (31) PTC 378 (Del)
 If there is a substantial amount of language copying and same characters and incidents are
used29as in the present case, it is can be categorically stated that there is violation through the
impersonation executed by A30.The re use of character names that are legendary in of blockbuster
history and promotional activities with reference to the characters of the past, reinforces CPP’s
position with respect to the copyright issue.
Furthermore, by character merchandising the plaintiff may establish as a fact that public would
look at the character and consider it to represent the plaintiffs. 31
B.(a)(ii) The respondent is liable for literal copying of the film

Where there is substantial similarity between the between the plaintiff’s copyrighted work and
the defendants’ alleged infringing copy, that would be sufficient to raise a prima facie case of actual
copying and if the defendant did not call evidence to rebut the prima facie case, then copying is
proved32.
Furthermore, it is not necessary that the alleged infringement should be an exact or verbatim
copy of the original but its resemblances with the original in a large measure is sufficient to indicate
that it is a copy.33
The facts, all pervasively emphasizes that there are striking similarities linking the new
production with yesteryear’s block buster.Thereby,A is liable for literal copying .
B.(a)(iii) The layman observer test confirms copyright violation in the instant case
The layman observer test confirms copyright violation through public perception
One of the surest and the safest test to determine whether or not there has been a violation of
copyright is to see if the reader, spectator or the viewer after having read or seen both the works is
clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a
copy of the original.34
A’s movie is an attempt to pass off as original, which has already been the content of a movie
of the past. The aim is to surreptitiously arouse nostalgic memories in the movie goers.This has
caused the re-screening of the past hits and a dip in the box office collections ,testifying beyond doubt
that the people have realized the same.
B.(a)(iv) The CPP enjoys moral rights in the instant case
Section 5735 states a special provision for the protection of the special rights of the author.
Visual and audio manifestations are directly covered 36.Therefore in the instant case, CPP can exercise
its moral rights and make A liable of copyright violation.
The author has the exclusive right to authorize any derivative work based on is work and from
this flows the right to prevent unauthorized adaptations or adaptations which go beyond what was
authorized.37in the instant case, the lack of authorisation ipso facto proves that there is infringement of
moral rights of CPP
B.(a)(v) Copyright law does not permit Adaptation in cinematography

29
Ravenscroft v. Herbert,54 (1980) RPC 193.
30
Fact sheet,p.2,para 3,4
31
Star India Pvt. Ltd. v. Leo Burnett(India) Pvt. Ltd. 2003 (27)PTC (Bom), Warner Bros., Inc., Film Export, A. G. and DC Comics, Inc. v.
American Broadcasting Companies, Inc v. Stephen J Cannel Productions ,654 f.2d 204.US Court of Appeals,Second Circuit.
32
King features Syndicate v. Kleeman, (1941) AC 417 at pp.435-436 (HL);(1941) 58 RPC 207;see also L.B.Plastics v. Swish Products,
(1979) RPC 551 at 625, Harman Pictures v. Osborne, (1967) 2 All ER 324 at 328
33
R.G. Anand v. M/s. Deluxe Films, AIR 1978 SC 1613 see also Hindustan Lever Ltd. v. Biswanath Hoseiry 2002(25) PTC 86 (Del), A
Practitioners Guide to Copyright Law by Bruce P. Keller & Jeffrey P. Cunard, Lights Camera, Fiction! : Analyzing the Legal Framework
for Protecting the Docudrama in Canada by Nighia D. Naguyen
34
Ibid 3 see also Barbara Taylor Bradford v. Sahara Media Entertainment Ltd 2004(28) PTC474 (Cal), Rai Toys Industries v. Munnair
Printing Press (1982) PTC 85 at 87(Del)
35
Indian Copyright Act,1957
36
Mannu Bhandari v.Kala Vikas Pictures Pvt Ltd ,AIR 1987 Del 13
37
Chaplin v. Leslie Frewin (Publishers) Ltd (1966) Ch 71 see also Gilliam v. America Broadcasting Companies, 538 F 2d 14, 192 USPQ 1
(CA 2 1976)
 “Sec 2f of the Indian Copyright Act,1957 states that the term cinematograph film includes a
sound track associated with the film.38
In relation to musical works, the relevant question to be considered is “whether the alleged
infringer has made use of a substantial part of the skill and labour of the original composer. Further,
making of an adaptation of plaintiff’s musical work is not allowed. 39
A’s adaptation of the soundtracks in the film make him liable for violation of the aforesaid
ruling40.
Hence, it is humbly submitted that there is violation of copyright in the impersonation of theme
and characters and the substantial copying of a developed idea.
Copyright will not subsist in a cinematograph film if a substantial part of the film is an
infringement of the copyright in any other work.41

C .THE SUCCESS FORMULA DOES NOT QUALIFY FOR PATENT

C.(a) THE SUCCESS FORMULA IS NOT ELIGIBLE FOR A GRANT OF PATENT
The essential requirements of a patentable invention are, novelty, inventiveness (i.e uninventive step
or lack of obviousness) and utility.42
Under section 64(1)(f) obviousness and lack of inventiveness is available as a ground for
revocation of a patent by petition before the high court. In opposition proceedings under section 25(1)
(e) and 25(2)(e)it must be shown that the invention “clearly” does not involve an inventive step while
there is no such qualification under section 64(1)(f)
The following inventions are not patentable:43
- The mere arrangement and rearrangement or duplication of known devices each functioning
independently of one another in a known way.
- The mere discovery of new use for a known process, results on a new product.
C.(B) THE SUCCESS FORMULA DOES NOT QUALIFY THE NON OBVIOUSNESS CRITERION
Obviousness44, in patent law, is judged by what an ordinary practitioner in the inventor’s field
would be expected to know already. 45 If an invention is within the grasp of that ordinary practitioner,
then the invention is obvious, as a matter of law.46
The knowledge of the factors ensuing the success of a film in the industry are well known by
the individuals practising in the respective industry.

38
Indian Performing Right Society v. Eastern India Motion Picture Association, ,AIR 1977 SC 1443 at 1450
39
Star India Private Limited v. Leo Burnett (India) Privte Limited, 2003 (27) PTC 81 (Bom) at 94 see also; Ladbroke v. William Hill
(1964) 1 WLR 273 AT 292
40
Fact sheet,p.2,para2
41
Section 13(3)(a), Copyright Act, 1957, Purefoy v. Sykes Boxall, (1954) 72 RPC 89, Ladbroke v. William Hill, (1964) 1 WLR 273 at 276
42
Section 25. The patents Act 1970.
43
“ Intellectual property law” by P. Narayan, 2 nd edition, p15; see also ”the following inventions are not patentable: the new use of article,
objects , substances or elements already known or employed for fix purposes, and the mere change or variation in form, dimensions or
materials of which they may be“ article: Patent systems in less developed countries : the cases of India and the Andean Pact countries” by
Le- Nhung Mc Leland and J Hrbert O’ Toole, 2 J,L. and tech.229
44
[ The definition of non obviousness varies greatly. For example, the US uses an objective test (whether the invention would be obvious
to one skilled in the art) while the European patent system uses a problem and solution analysis (whether, given the problem would be
obvious to one skilled i the art). ( “ FIRST TO FILE- IS AMERICAN ADOPTION OF THE INTERNATIONAL STANDARD IN
PATENT LAW WORTH THE PRICW” BY CHARLES R.B. MACEDO; 18 AIPLA Q,J 193;)]
45
Obviousness is a relative determination. The standard of comparison is one of “ordinary skill in the pertinent are”. Graham v.John
Deere Co., 383 U.S.1, 17 (1966) . The level of ordinary or average skill in the art varies from art to art. The obviousness inquiry requires
the fact finder to make a finding as to the level of ordinary skill in the art at issue. Id; see also infra note 63 and accompanying text.
46
It should be noted that the word”invention” is used as a term of art, referring to an “innovation” Richdel, Inc. v. Sunspool Corp.714
F.2d1573,1580 (Fed.Cir)1983). It is distinguished from a “patentable invention” i.e. one that satisfies the criteria of the patent laws. In re
Allen,343F.2d482, 487(C.C.P.A. 1965).Almond.J,dissenting).
 The test to determine obviousness:47 (1) The scope and content of the prior art o be determined
(2) The difference between the prior art and the claims and issue are to be ascertained and (3) The
level of ordinary skill in the pertinent art is to be resolved.
C.(b)(i) The formula under consideration for patent has been a prior knowledge
In R. v. Patent’s Appeal Tribunal Ex Parte Beechams Group Ltd. 48 Lord Denning ,MR
observed : “ if there has been a prior use of the product, it is a bar to a subsequent of it , even though
the prior user has used it without knowing or appreciating its qualities or its principles on which it was
based.49
Producer A using the techniques of success of a film which were already known to the
professionals in the field ( stated in the facts) in the industry to develop a formula ,would amount to
applying for patent of a process in prior use.
If a diligent search results in a discovery of a documentary information concerning the subject
matter of the proposed patentees application ,then the product or process prima facie lacks novelty in
order for a prior documentary information or indeed any ‘prior art ‘to invalidate a patent the grounds
tat it lacks novelty.50
The formula brought forth by Producer A is in no manner different from the prior knowledge
existing in the industry as it is only a compilation of the facets (individual formulas) applied by the
producers of the past block busters.
C.(b)(ii) Obvious to one skilled in the art
In order to show that the alleged invention was obvious and did not involve any inventive step
it is enough to prove that the person versed in the art would assess the likelihood of success as
sufficient to warrant actual trial.
If the process was for practical purposes obvious to a skilled worker, in the field concerned in
the state of knowledge existing at the date of the patent to be found in the literature then available to
him, that he would or should make the invention the subject of the claim concerned. 51
The process evolved by Producer A is obvious to the person skilled in the respective art as it
has been derived from the past efforts of the individuals working in the field.
Thus the formula applied for patent by Producer A is invalid on the grounds of non
obviousness.
D. PRODUCER A IS LIABLE TO PAY DAMAGES TO THE CONSORTIUM
D.(a) DAMAGES FOR TRADEMARK VIOLATION
In a passing off action establishing likelihood of damage is sufficient for grant of injunction. 52
( Damages are also payable for the innocent infringement of trademark. 53
The claimant need not prove actual damage in order to be entitled to an injunction but
likelihood of damage must be established.54An infringer does not have to be in direct competition with

47
Graham v. John deere Co.,383 US 1(1966); “The issue of obviousness requires an inquiry into the scope and content of the prior art, the
level of ordinary skill in the field of the invention the difference between the claimed invention and a prior art , and any objective evidence
of non obviousness such as long-felt need and commercial success (SIBIA Neurosciences Inc. v. Cadus Pharm. Corp. ,225 F.3d 1349,1355;
see also “A road map of biotechnology patents? Federal Circuit precedent and the PTO’s new examination guidelines” by Lawrence T.
Kass and Michael N. Nitapach ) ”;see also Graham v. John Deere Co.,383 US 1(1966)
48
(1973)1 All ER 627 at 632,633
49
“The material question to be considered is whether the alleged discovery lies so much out of the track of what was known before as not
naturally to suggest itself to a person thinking on the subject;it must not be the obvious or material suggestion of what was previously
known” (quoted in Biswanath v. Hindustan Metal (1979) 2 SCC 511 at 519).
50
General Tyre and Rubber Company v. Firestone Tyre and Rubber Company ltd. (1972) RPC 457 at 485; see also Teena Hart and Linda
Fazzani,”Intellectual Property Law”,(2nd edn.2000),p.19
51
Hoechst v Unichem (1969) RPC 55 at 67 (Bom)
52
Laxmikant V. Patel v. Chetan Bhai Shah and another(2002(3)SCC 65)
53
Gillette (UK) Ltd. v. Edenwest (1994) RPC 279
54
Borthwick v. The evening post [1883] 37 Ch D,p.462;see also Sutherland Publishing Co. v. Caxton Publishing Co.[1936]1 All ER 177;
Procea v. Evans(1951)68 RPC 210; Century v.Roshanlal AIR 1978 Del 258. “It is well settled that a plaintiff in a passing off action does not
have to prove that he has actually suffered damage by loss of business or in any other way. A probability of damage is enough, but the actual
or probable damage must be damage to him in his trade or business, that is to say, damage to his goodwill in respect to his trade or
reputation.”( Bulmer v. Bollinger(1978) RPC 79 at p.94)
the defendant to suffer injury from the use of its trade name by the defendant. 55
Producer A in this case has caused trade mark violation to the consortium of producers’ mark.
Therefore in spite of not being in direct competition with the consortium, he has caused injury to their
trade name, hence liable to pay damages.
D.(b) DAMAGES FOR COPYRIGHT VIOLATION
Normally damages are available for a breach of a statutory duty, and in the case of infringement
of moral rights this would appear to include damages for non-economic loss for the simple fact that
moral rights are not economic in nature.56
Damages can be awarded where an applicant is deprived of a commercial chance by virtue of
another's infringement of the applicant's copyright. 57
The principle in AMCO v.Indonesia58 that full compensation of prejudice,by awarding to the
injured party ,damnum emergens(loss suffered)and lucram cessans(expected profits)is applied here
In the case at hand producer A has infringed the copyright and benefited from the copyrighted
work of the consortium, hence liable to pay damages on this account.Hence, it is humbly submitted
that Producer A is liable to pay damages on account of infringement of the trademark and copy right.
CONCLUSION AND PRAYER

Wherefore in the light of the issues raised,arguments advanced and

authorities cited,it is humbly prayed that this Honb’le court may be pleased
to adjudge and declare:

A. THE TITLE OF THE MOVIE CONSTITUTES A VIOLATION OF TRADEMARK.

B. THERE IS VIOLATION OF COPYRIGHT AS THE ESSENTIAL THEME IS COPIED

C .THE SUCCESS FORMULA DOES NOT QUALIFY FOR PATENT

D. PRODUCER A IS LIABLE TO PAY DAMAGES TO THE CONSORTIUM

And pass any other order that this court may deem fit.
And for this act of kindness the applicant as in duty bound shall
forever pray.

55
Salmond Law of torts,17th edn.,p.401;see also Winfield's Tort,9th edn.,p.485;Ellora v. Banarasi Das,AIR 1980 Del 254 at p.257)
56
David Brainbridge,IPR,4th edn.,1999,
57
Bailey v. Namol Pvt. Ltd, (1993) 24IPR 461 at 477) ; [Where the defendant has made and sold multiple copies of plaintiff's copyrighted
work or publicly performed the work for a paying audience it is likely that he realised a profit by doing so, and plaintiff may recover that
profit as part of the relief in a successful copyright action. The objective of such an award is to deprive the defendant of illicit financial
benefit traceable to his infringing conduct. When pursuing an award of defendant’s profits, plaintiff need only offer evidence of defendant’s
gross revenues associated with the infringing activity. It is then up to the defendant to prove "his or her deductible expense and the elements
of profit attributable to factors other than the copyrighted work"](17 U.S.C.A 504 (b) 2000)
58
24 ILM,1985,P.1022,1036
Counsel for the Applicant