2017 (5) TMI 190 - HC - Indian Laws

Defendants served, injunction granted in copyright case involving Kannada film copying Korean film

The Bombay High Court ruled that the Defendants were adequately served with summons despite attempts to avoid service. The Court granted an injunction in ... Service by alternative electronic modes (email and WhatsApp) and sufficiency of notice - evading service and constructive notice - prima facie infringement / colourable imitation - interim injunction pending trial - disclosure of agreements and receipts in relation to the filmService by alternative electronic modes (email and WhatsApp) and sufficiency of notice - evading service and constructive notice - Alternative modes of service (email, WhatsApp and use of information obtained from CBFC and in-phone apps) sufficed to put the Defendants on notice where regular modes were evaded. - HELD THAT: - The Plaintiffs obtained addresses from the CBFC, effected communication by courier, email and WhatsApp, and annexed an affidavit showing acknowledgements and communications from Defendant No.1 and Defendant No.5. The Court held that the purpose of service is to give notice and a copy of the papers; where alternative modes demonstrably communicate the papers and are acknowledged, absence of formal registered post or bailiff service does not mean the Defendants had no notice. Defendants who avoid ordinary modes of service cannot take advantage of that evasion; modern electronic records and in-phone app information may establish service. Having regard to the attempts and the received communications, the Court found that adequate service/notice had been effected and that nothing further was required for the purposes of the present motion. [Paras 5, 6, 7, 8, 9]Alternative electronic service and the methods used by the Plaintiffs constituted adequate service/notice; the Defendants were properly on notice.Prima facie infringement / colourable imitation - interim injunction pending trial - A prima facie case of infringement was made out and the balance of convenience and risk of irreparable harm favoured grant of an ad interim injunction in the terms sought. - HELD THAT: - On the material placed, including admissions attributed to Vikhyat and particulars in the plaint, the Court found prima facie that the Kannada film is a colourable imitation of the Korean original. The Plaintiffs had assigned and licensed rights in the original work and had not assigned rights to the Defendants. Given the film's release and the possibility of telecast, the Court accepted that continued exhibition, distribution or telecast would cause irreparable injury and that the balance of convenience lay with the Plaintiffs. Consequently, the Court considered it appropriate to grant temporary and interim relief restraining further exhibition, distribution, telecast, exploitation and creation of derivative rights in the Kannada film pending final disposal. [Paras 10, 11, 12, 13]Ad interim injunction granted restraining exhibition, distribution, telecast, exploitation and creation of derivative rights in the Kannada film as set out in the order.Disclosure of agreements and receipts in relation to the film - Defendants were directed to disclose on oath agreements, arrangements and amounts received in relation to the Kannada film. - HELD THAT: - Alongside injunctive relief, the Court ordered discovery to enable assessment of parties' rights and any exploitation undertaken by the Defendants. The defendants were directed to disclose on oath any agreements or contacts with artists, writers, cast or third parties concerning negative, exploitation or satellite rights, and to account for amounts received relating to the film. This disclosure was ordered as an ancillary and necessary measure to further the Court's interim relief and to assist in eventual final adjudication. [Paras 13]Defendants directed to make the specified disclosures on oath.Final Conclusion: The High Court found that electronic modes of communication and information obtained from CBFC sufficed to put the Defendants on notice; held that a prima facie case of infringement existed and that the balance of convenience and irreparable injury justified ad interim injunctions restraining further exhibition, exploitation and creation of derivative rights in the Kannada film; directed specified disclosure by the Defendants and listed the motion for final hearing on 12th April 2017. Issues: Service of summons through alternative modes, copyright infringement in film industry, granting of injunctionService of Summons:The Plaintiffs attempted to serve the Defendants through various modes like courier, hand delivery, email, and WhatsApp. Despite the Defendants' attempts to avoid service, the Court acknowledged that the purpose of service is to provide notice to the other party, and the mode of service is not crucial as long as it effectively informs the party. The Court emphasized that the Defendants had ample notice of the proceedings and cannot claim ignorance due to evasive tactics. The Court concluded that the Defendants were adequately served and must face the consequences.Copyright Infringement in Film Industry:The Plaintiffs sought an injunction against the Defendants regarding a Kannada film alleged to be a plagiarized copy of a Korean film. The Plaintiffs obtained rights for a Hindi remake of the Korean film and discovered the infringing Kannada film in February 2017. The Court found prima facie evidence indicating that the Kannada film was a colorable imitation of the original Korean film, with admissions from the Defendants supporting this claim. The Court agreed that further exhibition, distribution, and telecasts of the Kannada film should be prevented to avoid irreparable harm to the Plaintiffs.Granting of Injunction:Based on the evidence presented and the balance of convenience favoring the Plaintiffs, the Court granted an ad-interim injunction restraining the Defendants from exhibiting, distributing, or telecasting the Kannada film on any medium. The Court also directed the Defendants to disclose various agreements and contacts related to the film. The matter was listed for a hearing and final disposal to proceed with the injunction on the specified date.This judgment from the Bombay High Court addresses the complexities of service of summons through alternative modes, copyright infringement issues in the film industry, and the legal considerations for granting injunctions to protect intellectual property rights.