In the Hon'ble District Court of Jaipur

Bhutiya Sannatta Communications v. Jhumru Mobile Telecommunication

Memorial Presented on Behalf of Defendant

Submitted by !ishan" Madhan I# Semester B$ %%.B &Hons.' School of %a( and )overnance Jaipur !ational *niversity

Table of Contents

+. Statement of Jurisdiction....................................................................., -. Inde. of $uthorities............................................................................./ ,. Statement of 0acts................................................................................1 /. Issues 2aised........................................................................................3 1. $r4uments ...........................................................................................5 3. Prayer....................................................................................................6

Statement of Jurisdiction In the instant case7 the District Court of Jaipur is not havin4 the 8urisdiction to hear this case as in this case7 there is no infrin4ement of any re4istered trademar" of Bhutiya Sannatta Communications. 9nly (here the conditions prescribed under Section +,/ of :rademar"s $ct7 +666 are fulfilled7 po(er to file suit is 4iven.+ Section +,/ states that +,/. Suit for infrin4ement7 etc.7 to be instituted before District Court &+' !o suit; &a' for the infrin4ement of a re4istered trade mar"< or &b' relatin4 to any ri4ht in a re4istered trade mar"< or &c' for passin4 off arisin4 out of the use by the defendant of any trade mar" (hich is identical (ith or deceptively similar to the plaintiffs trade mar"7 (hether re4istered or unre4istered7 shall be instituted in any court inferior to a District Court havin4 8urisdiction to try the suit.

1 Wipro Limited vs Oushadha Chandrika Ayurvedic 2008 (37) PTC 269

Index of Authorities

+. =ipro %imited vs 9ushadha Chandri"a $yurvedic >................................-??@ &,5' P:C -36 -. 2ec"itt A Colman of India %td. v. M.P. 2amchandran and $nr...........-??, &-5' P:C ,?1 Del ,. Dabur India %td. v. Col4ate Palmolive India %td......................................$I2 -??1 Delhi +?/. Dabur India %td. vs =ipro %imited +-6.......................................................... &-??3' D%: -31 1. Hindustan *nilever %imited vs Procter $nd )amble Home Products C.S.!o.+- of -?+? Calcutta HC 3. Col4ate Palmolive &India' %td vs Hindustan *nilever %td &-?+,' CS &9S' !o. +1@@ of -?+, Delhi Hi4h Court

Statement of Facts Bhutiya Sannatta Communications filed a suit against Jhumru Mobile Telecommunication on December 13, 2030 for an interim injunction for infringing their trade mark under the Trade Marks Act. Jhumru Mobile Telecommunication had launched its mobile Jhoom Xo2's advertisement on December 9, 2030 which compared the Mobile Battery power and 3 G Connectivity with Bhutiya Sannatta Communications product, claiming that continuous use of Jhoom Xo2 has resulted in better business deals and getting jobs and more friends on facebook to the users because of its better sound quality and longer battery life in comparison with 'Jhroom XoZ . :he Buestion that arises for consideration in this application is (hether there should be an interim in8unction restrainin4 the Defendant Jhumru Mobile :elecommunication from publishin4 andCor telecastin4 the advertisements launched by it for its product Jhoom ;#o- )SM 5 Sim Mobile in the print and electronic media (hich it commenced on 6 th December -?,?. :he 4rievance of Plaintiff Bhutiya Sannatta Communication is that the impu4ned advertisements misuse the Plaintiffs' re4istered trademar" 'Jhroom #oD7 mislead the public7 and are adversely affectin4 the 4ood(ill and reputation of the Plaintiffs' Mobile and that the impu4ned advertisements tarnish7 and defame the (orth and reputation of the PlaintiffEs brand and products.

Issues Raised

1. Whether there was an infringement of registered trademark or not? 2. Whether Bhutiya Sannatta Communications is entitled to injunction or not?

Arguments Advanced

Whether there was an infringement of registered trademark or not?

:he advertisement of Jhumru Mobile :elecommunication is to sho( the Buality features of the product and it does not have any relation (ith plaintiffs claim7 there (as no intention to harm the reputation of or to affect the sale of Bhutiya Sannatta Communications. the Calcutta Hi4h Court in a similar case has enunciated follo(in4 principles on the issue of dispara4ement2

&a' $ tradesman is entitled to declare his 4oods to be best in the (orld7 even thou4h the declaration is untrue.

&b' He can also say that his 4oods are better than his competitorsE7 even thou4h such statement is untrue. &c' 0or the purpose of sayin4 that his 4oods are the best in the (orld or his 4oods are better than his competitorsE he can even compare the advanta4es of his 4oods over the 4oods of others. In a relative case the courts held that7 comparative advertisin4 is permissible as lon4 as the competitorEs product is not dero4ated7 discredited7 dis4raced7 thou4h (hile comparin4 some amount of Fsho(in4 do(nG is implicit.

0urther7 it held that certain factors have to be "ept in mind (hile decidin4 a Buestion of dispara4ement. :hese factors are

&+' :he intent of the advertisement H this can be understood from its story line and th e message sought to be conveyed and in the current case the storyline has been created to attract people by showing features which other mobile companies do not have.
2

Reckitt and Colman of India Ltd. v. M.P. Ramchandran and Anr

&-' :he overall effect of the advertisement H does it promote the advertiserEs product or does it dispara4e or deni4rate a rival productI In this conte.t it must be "ept in mind that (hile promotin4 its product the advertiser may7 (hile comparin4 it (ith a rival or a competin4 product7 ma"e an unfavorable comparison but that mi4ht not necessarily affect the story line and messa4e of the advertised product or have that as its overall effect.

&,' :he manner of advertisin4 H is the comparison by and lar4e truthful or does it falsely deni4rate or dispara4e a rival productI =hile truthful dispara4ement is permissible,.

By watching or reading the advertisement of my clients company it is clear that the intention of the advertisement was to promote their own product and not to disparage the product of Bhutiya Telecommunication and the fact that my clients phone has some remarkable features which Bhutiya telecommunication does not provides has led them to file for an injunction as they fear that with so much advanced features my clients phone will capture the market leaving the other companies behind.

Whether Bhutiya Sannatta Communications is entitled to injunction or not?

=hile Jpuffin4E or e.a44eration by a person of its products 7 :his implies that # Company can say that its products are best or better7 but by comparison.

If hyped;up advertisin4 trans4resses the 4rey areas of permissible assertion7 the advertiser must have some reasonable factual basis for the assertion made therefore7 for # to ma"e an off;the;cuff or unsubstantiated claim that its business C products C services are better that its rivals. a distinction can be made and due latitude be 4iven for an advertisement to promote oneEs clienta4e. :herefore7 any and all facts stated by # in the advertisement must be substantiated are capable of bein4 proven7 and preferably7 based upon the findin4s of a reno(ned mar"et surveyor or record "eepin4 a4ency.

!o in8unction can be 4ranted in favour of the Plaintiff. / $s it (as held in the case cited above7 there
3 Dabur India Ltd v. Colortek Meghalaya Pvt. Ltd 4 Hindustan Unilever Limited vs Procter And Gamble Home Products C.S.No.12 of 2010 Calcutta HC; Colgate

(as no prima facie matter in favour of the Plaintiff as there is no infrin4ement of any trade mar".

rayer

In li4ht of the facts and ar4uments advanced and authorities cited7 the Defendant most humbly reBuests the Court to dismiss the suit for in8unction.
Palmolive (India) Ltd vs Hindustan Unilever Ltd (2013) CS (OS) No. 1588 of 2013 Delhi High Court.