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THE INTRA MOOT COURT COMPETITION, 2016

TEAM CODE:

THE INTRA MOOT COURT COMPETITION, 2016


3RD-4TH SEPTEMBER 2016

BEFORE THE HONBLE COURT OF BOMBAY

JACK SAMUELSON AND BRIGHTWALKER STUDIOS LTD.

V.

EARL GREY AND EDIFIED COIMCS LTD.

ON SUBMISSION TO THE REGISTRY OF THE COURT OF THE

HONBLE HIGH COURT OF BOMBAY

MEMORIAL FOR THE DEFENDANT-JACK SAMUELSON AND

BRIGHTWALKER STUDIOS LTD


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TABLE OF CONTENTS

INDEX OF AUTHORITIES

LIST OF ABBREVATTIONS
TABLES OF CASES REFERRED
BOOKS REFERRED

STATEMENT OF JURISDICTION

STATEMENT OF FACTS

STATEMENT OF ISSUES

SUMMARY OF ARGUMENTS

ARGUMENT ADVANCED
I. WHETHER THE WRIT PETITION FILED IS MAINTAINABLE BEFOR
THE HIGH COURT
II. DOES THE DEFENDANTS ACTION CONSTITUTE INFRINGMENT OF
COPYRIGHT IN THE WORK
III. WHETHER THE TRADEMARK OBTAINED BY THE DEFENDENTS
SIDE FOR THR WORD BOROMIR VALID AND DOES IT AMOUNT TO
INFRINGMENT OF TRADE MARK

PRAYER
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STATEMENT OF JURISDICTION

The petitioner humbly submits this memorandum for the petition filed before this
honorable court. The petition invokes its writ jurisdiction under article 226 of the
constitution of India. It sets forth the facts and the laws on which the claims are based.
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INDEX OF AUTHORITIES

LIST OF ABBREVATIONS

AIR All india report


Anr. another
Art. Article
bom Bombay
HC High court
Honble Honorable
i.e That is
No. Number
s. Section
SC Supreme court
SCC Supreme court cases
WLR Wales law review
ALL Allahabad
RAJ rajasthan

LIST OF CASES REFERRED:

london press ltd v university tutorial press ltd 1916 2 chd 601
macmillan and co ltd v k&j cooper AIR 1924 PC 75
r.g.anandh v delux films AIR 1978 SC 1613: 1978 4 SCC 118
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firm koonerji bechari lal v firm adam hazi pir mohammed AIR 1944 SIND 21
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STATEMENT OF FACTS

I. Jack samuelson an author who skyrocketed into heights of fame and glory
after publishing his most prized and acclaimed work the ballad of malice and
power. It is fantasy fiction which mainly revolves around kings magical
creatures in their quest for power t. Samuelson published the ballad of malice
and power in a series of 7 books. The first book released in1994 and was titled
flagon of dreams received overall positive reviews from the critics and became
of the bestsellers. Later he released the rest of the books in regular intervals.
the last one was released on 2014.digital and printed versions were available
in us members of the European union , Canada, china and the Indian
subcontinent.
II. Later brightwalker studios a production company closed a deal with jack
samuelson and acquired exclusive rights to adapt his work into a full fledged
television valar doharis :the beginning . the show was available for viewership
in India through an online portal named zoom in .
III. Ms earl grey a huge fan of the franchise was very much taken by a particular
character named boromir bohemia a character though very much important
finds very little mention in the TV series. However she was very much
disappointed that the character did not receive as much importance as it did
deserve. She started her very own fan fiction in which the story line revolved
around boromior as the protagonist even though its essence was based on
samuelsons version. The fanfiction was titled as the bohemian rhapsody. The
bohemian rhapsody garnered worldwide popularity and soon became a
fanfavourite earl published her fanfiction in her blog the pickwick papers.
IV. Edified comics a book publishing company based in Mumbai approached ms
grey and acquired an all-encompassing ip assignment in the bohemian
rhapsody in exchange for a hefty sum and also promising grey that she would
retain creative control over the story. ecl plans distribution of its comic series
in both printed and online forms by mid 2016. In order to increase the
publicity for its comic series ecl started the manufacture and distribution of
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merchandise based on the comic series .on 4th January 2015 ecl obtained an
Indian trademark for the word BOROMIR . Meanwhile bsl produced a spinoff
series after the series ended in feb 2015 called bormir the conqueror based on
the life and conquests of boromir . a teaser trailer was released in june 2015 .
the show was globally released on feb 2016.
V. Ecl released the bohemian rhapsody in a comic craze event in Mumbai on 16
th august 2016. The online version was priced at rs 30 and the printed version
was priced at rs 59. The comics received an overwhelmingly positive response
from fans all over .
VI. Highly aggrieved samuelson and bcl initiated legal proceedings against ecl and
grey before the Bombay high court for misappropriating their character
boromir bohemia. But ecl denied these claims of misappropriation and inturn
accused bsl of unlawfully using their trademark on boromir the conquerer.
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STATEMENT OF ISSUES

ISSUE I: whether the writ petition filed by the petitioner is maintainable before the
high court?
ISSUE II: Does the defendants action constitute infringement of copyright in the
work
ISSUE III: whether the trademark obtained by the defendants side for the word
boromir is valid and does it amount to infringement to trademark?

STATEMENT OF ARGUMENTS

1. whether the writ petition filed by the petitioner is maintainable before the high
court?
The writ petition filed by the petitioner is maintainable. Firstly sec 32 of the indian
copy right act, 1957 states the when there is a infringement of copyright the owner
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can file it in the district court with appropriate jurisdiction . secondly in certain cases
the high court has original jurisdiction in which the high court itself acts as a district
court.

2. does the defendants action constitute infringement of copyright in the work


The action of the defendents does not contribute to infringement of copyright , firstly
as the the word original does not pertain to origin of ideas but expression of them as
in the case of university of london press ltd v university tutorial press ltd 1916 2 chd
601

3. whether the trademark obtained by the defendants side for the word boromir
is valid and does it amount to infringement to trademark?
Trademark obtained by the defendant is very much valid , firstly it very much falls
under the meaning of the word trademark as in the case of koonerji bechari lal v firm
adam hazi pir mohammed AIR 1944 SIND 21 and it does not amount to infringement
as it was not the creation of one of the defendents.

ARGUMENT ADVANCED

I. Whether the writ petition filed by the petitioner is


maintainable before the HC?
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It is most respectfully submitted before this honorable court that this writ filed by the
petitioner is maintainable in this honorable high court of Bombay. This is insisted in
accordance with art 226 of the constitution of India.

Art 226(1) of the constitution of India , 1950 reads as ,


notwithstanding anything in article 32 , every high court shall have the power ,
throughout the territories in relation to which it exercises jurisdiction , to issue any
person or authority, including in appropriate cases , any government , within those
territories directions , orders or writs including writs in the nature of habeas
corpus , mandamus , quo warranto and certiorari or any of them for the
enforcement of any of the rights conferred by part three and for any other
purpose.
The writ petition filed by the plaintiff is maintainable under the Indian copyright act,
1957. 1It states that the when there is an infringement of copyright in any work by this
act shall be instituted in the district court having jurisdiction .

The definition of the district court mentioned in the 2act should be looked at using the
cpc.
District means the local limits of the jurisdiction of a principal civil court of
original jurisdiction of a principal civil court of original jurisdiction (hereinafter
called the district court )and includes the local limits of the ordinary original civil
jurisdiction of a high court.

Hence wherever a high court has original jurisdiction as in the case of Mumbai where
the high court itself is considered as the district court. All the other places where the
high court does not have jurisdiction it will be the civil court for that district.

II. Does the defendants action constitute infringement of copyright


in the work

1 s.62 the copyright act 1957


2 s.2(4)the code of civil procedure
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The counsel for the defendant most humbly put before the honble court that the
action of the defendants namely ms earl grey and edified comics ltd does not amount
to infringement of copyright ,moreover it can be classified as an original literary work
.

As in the case of university of london press ltd v university tutorial press ltd 3, the
word original does not mean that the word must be the expression of original or
inventive thought. the copyright act is not concerned with the origin of ideas but with
the expression of thought and on the case of literary work with the expression of
thought in printing or writing the originality that is required relates to the expression
of the thought, but the act does not require that the expression must be in a original or
novel form , but that work must not be copied from another work.

In the case of macmillan and co ltd v k&j cooper 4 the judicial committee approved
of the above observations by holding that the question is not whether the material
which are used are entirely new and had never been used before or even that they
have never been used before for the purpose , but the true question is whether the
same pln , arrangement and combination of materials have been used before for the
same purposes or for any other purposes. If they have not , then the plaintiff is entitles
to a copyright although he may have gathered hints for his plan and arrangement or
parts of his plan and arrangement from existing and known sources. He may have
borrowed much of his materials from other , but if they are combined in a different
manner from what was in use before , is entitled to a copyright .

From the above percepts of two judgments it has become very much evident that the
copyright a act lays much more importance on the expression of ideas and thoughts
rather than their mere origin. This notion has been stressed again in the case of
r.g.anandh v delux films5 ,it was declared there can be no copyright in an idea, subject
, themes , plots, historical or legendary facts there needs to be an originality in the
form of expression fazal ali ,j after considering a number of authorities- Indian,
English and American derived the following

3 1916 2 chd 601


4 AIR 1924 PC 75
5 AIR 1978 SC 1613: 1978 4 SCC 118
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there can be no copyright in an idea , subject matter , themes , plots or


historical /legendary facts and violation of the copyright in such cases is
confined to the from , arrangement and manner and expression of the idea by
the author of the copyrighted work what is protected is not original thought or
information , but the original expression of thought or information in some
concrete form.
Where the same idea is being developed in a different manner, it is manifest
that the source being common, similarities are bound to occur. But if the
defendants work is nothing but a literal imitation of the copyrighted work
with some variations here and there, it would amount to violation of copyright.
Thus the copy must be substantial and material one. a copy is that which
comes so near the original as to give to every person seeing it the idea created
by the original. This is a sure and safe test to determine the violation of
copyright.
Moreover as council for the defendants we would like to stress the importance of the
fact that neither bsl nor jack samuelson undertook any kind of legal action after they
came to know about the fanfiction that earl grey had published in her own blog the
pickwick papers. This very much highlights their sinister intentions amounting to
estoppel with regard to the defendant.

III. Whether the trademark obtained by the defendants side for the
word boromir is valid and does it amount to infringement to
trademark?

The counsel for the defendants humbly put forward before the honble court that the
trademark obtained by the defendants side for the word boromir is very much valid.
We have placed our justifications in the following constructs:
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According to the indian trademark act of 19996,


trademark means a mark capable of being represented graphically and which is
capable of distinguishing the goods or services of one person from those of others and
may include shape of goods , their packaging and combination of colors

as stated in the verdict of firm koonerji bechari lal v firm adam hazi pir mohammed 7
has observed that a trademark is some symbol consisting in general , of a picture ,
label , word or words , which is applied or attached to goods of a trader so as to
distinguish them as his from similar goods of other traders and to identify them as his
goods or as those of his successors in the business in which they are produced or put
forward for sale .

from the above stated judgment it is very much clear that the trademark obtained for
the word bormir is valid and very much falls within ambit of the definition of
trademark as provided in the s.(2)(zb) of the indian copyright act

According to the Indian trademark act of 19998:


An application for registration shall be advertised in the trademark journal ordinarily
within six months of the acceptance of the application or after the expiry of the period
referred to subsection 2 of section 154 whichever is later. Where a trademark applied
for is other than a word the registrar may call upon the applicant to furnish a camera
ready copy of the trademark. The registrar may after informing the public in the
trademark journal put the applications published in the journal on the internet ,
website or any other electronic media .

According to the indian trademark act of 19999


This section provides for opposition of registration . Any person can give notice in
writing of opposition to the registration within three months from the date of
advertisement or readvertisement of an application for registration

6 s.2(1)(zb) the trademark act of 1999


7 AIR 1944 SIND 21
8 s.20 the indian copyright act of 1999
9 s.21 the trademarks act of 1999
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According to the Indian trade mark act of 199910


In all legal proceedings relating to a trademark registered under this act the
original registration of the trademark and all subsequent assignments and
transmissions of the trademark shall be prima facie evidence of the validity
thereof
In all legal proceedings as foresaid a registered trademark shall not be held to
be invalid on the ground that it was not a registerable trademark under section
nine except upon evidence of distinctiveness and that such evidence was not
submitted to the registrar before registration

According to the indian trademark act of 199911


where a trademark is registered in breach of subsection (1)of section 9,it shall to be
declared invalid if , in consequence of the use which has been made of it, it has after
registration and before commencement of any legal proceedings challenging the
validity of such registration , acquired a distinctive character in relation to the goods
or services to which it is registered

1) The taking of any of any essential feature of the mark or taking the whole
of the mark and making a few additions and alterations would cost
infringement.
2) The infringing mark must be used in the course of trade i.e.,regular trade
wherein the proprietor of the mark is engaged .
3) The use of the infringing mark must be printed or usual representation of
the mark in advertisements , invoice or bills .
The above given provisions are the essentials for infringement .
relating this fact to the case at hand we infer that it is the petitioners who have
infringed our trademark by unlawfull usage of the word boromir , for which a
trademark was obtained from the side of the defendant.

If the infringer has absolutely copied the mark and made a facsimile representation of
it, no further evidence is required. When the similarities are so close as to make it
impossible to suppose that such marks were devised independently of each other.
10 s.31 the trademarks act of 1999
11 s.32 the trademarks act of 1999
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PRAYER

Wherefore in the lights of the facts stated , issues raised , arguments advanced and
authorities cited it is most humbly and respectfully prayed befpore this honble
high court of Bombay that it may be pleased to :

Hold that the writ petition filed by the petitioner is maintainable before the
high court

Hold that the defendants action constitute infringement of copyright in the


work
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Hold that the trademark obtained by the defendants side for the word boromir
is valid and does it amount to infringement to trademark

For this act of kindness, the petitioner(s) shall duty bound forever party.

Respectfully submitted by
COUNSELS FOR THE PETITIONER(S)