Distinctive elements in advertising campaigns can be protected under intellectual property laws: Delhi High Court

The Delhi High Court has held that distinctive elements in advertising campaigns can be protected by the courts under intellectual property law [Bright Lifecare Pvt Ltd v Vini Cosmetics Pvt Ltd and Anr]..Justice Prathiba M Singh said that the threshold for establishing distinctiveness would be quite high and unless and until there is enormous distinctiveness and likelihood of confusion or deception, the court would not grant injunction against a rival campaign because it may stultify creativity.“Thus, in law, an advertising campaign, if it signifies the source and has become distinctive of the Plaintiff, can be granted protection,” the Court held..It was dealing with a suit by Bright Lifecare Pvt Ltd – a company engaged in manufacturing and trading of health supplements, nutraceutical and food products. One of its most popular products is protein supplement sold under the MuscleBlaze trademark.It had approached the High Court against a firm named Vini Cosmetics Pvt Ltd which manufactures and merchandises pharmaceuticals, ayurvedic and cosmetic products. It also sells deodorant and perfume brands like Fogg, Ossum and Whitetone.Bright Lifecares stated that in 2018, it started a video campaign titled ‘Ziddi Hoon Main’ on various platforms. These videos used various forms of the words ‘Zidd’ and ‘Ziddi’ to describe a person who does not give up despite challenged.The words Zidd and Ziddi were also used by the plaintiff for several other slogans.However, in January 2022 the plaintiff came across two advertisements of a deodorant named ‘Realman’ of Vini.These advertisements, it was argued, were conceptually and visually similar to the plaintiff’s. It was also alleged that Vini has adopted the tagline ‘Ziddi Perfume’ which is deceptively similar to their mark and has therefore infringed the copyright involved in the cinematograph work..After considering the screenshots and viewing both the advertisements, Justice Singh said that the two commercials are likely to give an ordinary viewer the impression that they are connected or emanating from the same source.The judge observed that in both the advertisements of Vini, creative expression of the Bright had been imitated and if a person who has seen the MuscleBlaze advertisements in the past now gets a glimpse the perfume commercials, an impression can clearly be created that the latter is an extension of the plaintiff’s range of products.The similarity in the theme and expression is quite prominent and palpable, the judge said.“The overall theme of dark setting, persons working out, use of ‘ZIDDI’ and ‘ZIDD’ and colour of yellow and black is present in the Plaintiff’s and Defendant No.1’s campaign… There is no doubt that no monopoly can be granted over the concept and idea of ‘ZIDD’ and ‘ZIDDI’. However, the portrayal of the same by picking almost identical elements, cannot be completely ignored by the Court,” the Court stated. .The Court further held that while there can be no monopoly or exclusivity on the use of the word ‘Zidd’ and ‘Ziddi’ as an idea to show perseverance but the portrayal has to be different.“There can also be no monopoly or exclusivity on showing a muscular person working out in a gym but the expression of the idea has to be different. Again, the portrayal of a person using a punching bag can also not be monopolized but the expression has to be different. In the impugned commercials, in the opinion of the Court, the expression is a colourable imitation of the Plaintiff’s advertising commercial,” the single-judge underscored. .Therefore, the Court directed Vini to pull down the two commercials from YouTube and other platforms.It, however, clarified that there is no restraint on Vini from using the words or expression ‘Zidd’ or ‘Ziddi’ in a manner which is not similar or identical to Bright’s and they are free to modify their ads to remove the objectionable frames and then re-launch them..Advocates Vikas Khera, Ved Prakash and Vishal Sharan appeared for the plaintiff.Senior Advocate Chander Lall along with advocates Anish Chawla, Ananya Chugh and Bhav Arora appeared for defendant..[Read Judgment]