Protection Of Advertisement Campaign- An Analysis
Introduction
In this growing age of technology, business corporations have also levelled up in the promotion of their products. The company aims at highlighting the qualities of the products through advertisements which thereafter becomes an advertisement campaign which build the market identity of the product.
The advertisements require a lot of brainstorming in highlighting the distinctive characteristics of the product and build its uniqueness. Social media propaganda has gained roots and therefore it has become important for business corporations to preserve their innovations in order to secure the distinctiveness of the products. Advertisements are for public display and therefore, claiming the ownership is a debatable question in the domain of intellectual property.
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Facts of the Case
The case revolves around Bright Lifecare Pvt. Ltd., which is the plaintiff in the present case and Vini Cosmetics Pvt. Ltd., as the defendant. The former is a health supplement, health products manufacturing and trading business company while the defendant is a cosmetic, merchandising company under the house mark of ‘Vini’. The plaintiff in the present case filed a legal suit in the Delhi High Court on the grounds that the defendant has used similar elements in its advertising campaigns for the promotion of the product as used by the plaintiff. Plaintiff alleges that the same amounts to infringement of the trademark rights and the copyright involved in the cinematograph works.
One of the most important products of the plaintiff is a protein supplement under the trademark of Muscle Blaze. The plaintiff in March 2018 released a video as a part of the advertisement campaign for its product on various social media platforms, one of which was YouTube. The video was titled “ZIDDI HOON MAIN ” and the same was followed by various other videos in the following months.
Defendant No.1 released a video on YouTube of a deodorant product named “Realman”. The video was viewed by the plaintiff in January, 2022 who then claimed that the elements of the video by the defendant are evidently identical to that of the advertisement released by the plaintiff. Plaintiff even argued that the defendant deceptively used its distinct mark of “ZIDDI HOON MAIN” as its tagline of the deodorant product with the name “ZIDDI PERFUME”.
The advertisement by the plaintiff is based on the theme where the protagonist is engaged in a strenuous physical activity in a gym, in a dark background and the quote is written in yellow and white colour saying, “PHIRSE ZIDD KAR”. The word “ZIDD” in the advertisements depict the perseverance and resilience of the protagonists.
In a similar stance, the advertisement campaigned by the defendant also involves the protagonist performing physical exercises in a gym setting with a dark background and the name of the commercial is given in yellow colour with an iota of white light as “ZIDDI PERFUME”.
Issues before the Court
- The question arises before the Hon’ble Delhi High Court whether the advertisement campaigns and its various elements can be protected under the intellectual property of a company.
- The question arises as to what is the manner in which the advertisement campaigns and its various elements can be protected.
- The question arises as to what constitute the distinctive elements in an advertisement campaign.
- The question arises whether the advertisement campaign constitutes the infringement of an idea or the expression of the idea.
Judgement
The Court observed that the main contention lies in the usage of the word “ZIDD” by both the parties in their respective advertisements and the meaning pertaining to the said word. The court observes that it is not the idea which is protected under intellectual property rather the expression of the idea which can be claimed for infringement under copyright.
As the defendant’s advertisement is not an exact replica of the advertisement of the plaintiff, therefore, it becomes essential to determine the substantial amount of similarity between both the works. Herein, the court relied on the test of determination laid down by the Supreme Court in R.G. Anand v. Delux Films[i], according to which the infringement must be proven on the grounds that the defendant has extracted a substantial portion of the original work and reproduced the same and used it in an unfair manner.
The court observes that distinctive elements in an advertisement can be granted protection only when there is a possibility that the elements in the advertisements concerned might result in deception and confusion in the minds of the consumers.
The court, after perusing both the commercials, opined that the elements in both the commercials are quite a much similar, leading to an impression among the consumers that both the commercials are interrelated and emanate from the same source. The court opined that a mere glance at the commercial would lead to an impression among the consumers that the commercial for the perfume is somewhat related to the protein commercial due to the identical setting of both commercials.
There can be no monopoly over the elements of the commercials, however, there is a need for the idea to be expressed differently. The defence of the defendant that the word “ZIDD” connotes different meanings in both the commercials, the court highlighted the point that the defendant has used the word with perfume, however, deodorant and perfume are two category products which cannot be used interchangeably. Furthermore, the visual representation of the word should have been in a different manner rather than in the same manner presented by the plaintiff.
The court, therefore, views that the elements of the plaintiff are alleged to have been copied, resulting in confusion in the minds of the market audience, who shall regard the commercial of the defendant as an extension to that of the plaintiff. The presence of such a possible result in copyright infringement and also the case of passing off by the defendant.
Thus, the court observes that the grievances of the plaintiff are reasonable and the two videos out of all the other videos of the defendant are considered to be evocative of the commercial of the plaintiff and are thereby held to be liable for restraint. Furthermore, the court orders the defendant to take down the impugned videos from youtube and all other media platforms, re-modify and restructure the elements in the impugned such that the same is not identical to any other video and use the word “ZIDD” or “ZIDDI” in a manner not specific to any other commercial.
Critical Analysis
In this prominent judgement, the court laid down that the essential distinctive elements in an advertisement can be protected under intellectual property rights. Advertisements create a distinctive identity of the product which is only related to that particular product. Such commercials take a lot of effort and investment on part of the manufacturers in presenting the characterising feature of the product.
Mere ideas can be claimed for protection; it is the expression of the idea which needs to be scrutinised in a legal suit for infringement. The present case brought to light the fact that the similarity in the elements of two commercials is an infringement of copyright and trademark. The signs, symbols, quote, dialogue, etc used by the manufacturer in a particular setting and theme gives a distinct identity to the product, the same elements can be used by other manufacturers, however, the expression, setting and theme must differ so as to avoid a clash of interest.
Conclusion
Manufacturing industries engage day and night in creating a niche identity of their products, therefore in order to secure, the advertisement campaigns and especially the distinctive elements of the same shall be protected by intellectual property so as to prevent the misuse of the elements. Consumers should not be under the impression that two commercials of different manufacturers are interconnected to each other because of identical elements in the advertisements. This is why there arises the need to protect the distinguishing factors of an advertisement under intellectual property.
Author: Shambhavi Vatsa, A Student at National Law University and Judicial Academy, Assam, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing.
References
[i] R.G. Anand v. Deluxe Films, (1978) 4 SCC 118.
- Bright Lifecare Pvt. Ltd. v. Vini Cosmetics Pvt. Ltd., CS(COMM) 144/2022.
