MEMORIAL FOR THE PLAINTIFF 1

TABLE OF CONTENTS

NO. TITLE PAGE

NO.
1. INDEX OF AUTHORITIES 2

2. STATEMENT OF JURISDICTION 7

3. STATEMENT OF FACTS 8

4. ISSUES FOR CONSIDERATION 9

5. SUMMARY OF ARGUMENTS 10

6. ARGUMENTS ADVANCED 11

7. PRAYER 15

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 MEMORIAL FOR THE PLAINTIFF 2

INDEX OF AUTHORITIES

NO. NAME CITATION FOOTNOTE

NUMBER
1. Ash v. Invicta (1912) 29 RPC 21
465 (HL)
2. Balkrishna Hatcheries v. Nando’s 2007 (34) PTC 19
International Ltd. and anr. 677 (Bom)
3. Bishwanath Prasad Radhey Shyam v. (1979) 2 SCC 511 16
Hindustan Metal Industries
4. Catnic Components Ltd. v. Hill and [1982] RPC 183, 7
Smith Ltd. 223
5. Cooper’s Application (1902) 19 RPC 53 8
6. D.A. & K’s Application (1926) 43 RPC 8
154
7. Designers’ Guild Ltd. v. Russell [2001] FSR 113 4
Williams Ltd.
8. Digussa Huls SA v. The Comptroller [2005] RPC 29 17
General of Patents
9. Donoghue v. Allied Newspapers Ltd. [1938] Ch. 106 1
10. E.S.P.’s Application (1945) 62 RPC 87 8
11. Fabwerke Hoechst v. Unichem AIR 1969 Bom 16
Laboratories Ltd. 255
12. Franz Hanfstaengal v. H.R Baines & Co. (1895) AC 20 5
13. Fujitsu Ltd’s Application [1997] RPC 608 11
14. Gale’s Application [1991] RPC 305 11
15. Ganedro Nath Banerjee v. Dhanpal Das AIR 1945 Oudh 6 16
Gupta
16. George Ward (Moxley) Ltd. v. Richard [1988] FSR 66 2
Sankey Ltd.
17. Gleeson v. H.R. Denne Ltd. [1975] RPC 471 1
18. Green v. Broadcasting Corp. of New [1989] RPC 700 2
Zealand
19. H.C.Dixon & Sons Ltd. v. Geo 50 RPC 36 19
Richardson & Co. Ltd.
20. Hamstaengal v. Smith & Sons (1905) 1 Ch. 519 5
21. Harilal Prabhudas v. Ganesh Trading AIR 1984 Bom. 20
Company 218
22. Herman Pictures N.V. v. Osborne (1967) 1 WLR 1
723
23. Hiller’s Application [1969] RPC 267 8
24. Hitachi’s Application [1991] RPC 415 11
25. Hogg v. Scott (1874) LR 18 Eq 1
444
26. Hollinrake v. Truswell (1894) 3 Ch. 420 1
27. Howkes & Son (London) Ltd. v. [1934] Ch. 593 7
Paramount Film Service Ltd.

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 MEMORIAL FOR THE PLAINTIFF 3

28. Jallineck’s Appl. 1946 63 RPC 59 19

29. Jefferys (C.) v. Boosey (T.) (1855) 4 HLC 1
815
30. K.Murrari v Muppalla Ranganayakamma (1987) 2 ALT 2
699
31. Kelly v. Hooper (1840) 4 Jur. 21 7
32. Kleeneze Ltd. v. D.R.G. (UK) Ltd. [1984] FSR 399 2
33. L.A. Randall Pty. Ltd. v. Millman [1977-78] 17 1
Services Pty. Ltd. ALR 140
34. L.B. (Plastics) Ltd. v. Swish Products [1979] RPC 551 1
Ltd. (HL)
35. Ladbroke (Football) Ltd v. William Hill All ER (1964) 1 5
(Football) WLR 2
36. Merril Lynch’s Application [1989] RPC 561 11
(CA)
37. Mohendra Chandra v. Emperor AIR 1928 C 359 : 5
33 CWN 179.
38. Orient Longman Ltd. v. Inderjit Anand 2005 (30) PTC 11 4
& anr. (Del)
39. Parker-Knoll v. Knoll International (1962) RPC 265 21
40. Pepsico Inc. & ors. v. Hindustan Coca 2003 (27) PTC 4
Cola Ltd. & anr. 305 (Del)
41. Pitilite Industries Ltd. v. S.M. Associates 2003 (5) Bom CR 4
& ors. 295
42. R.G. Anand v. Delux Films AIR 1978 SC 1,5
1613
43. R’s Application (1923) 40 RPC 8
465
44. Raghunath Damodhar v. Janardhan (1891) ILR 15 22
Gopal Bom 599
45. Rai Toys Industries v. Munir Printing (1982) PTC 85 5
Press
46. Ratna Sagar Pvt. Ltd. v. Trisea 64 (1996) DLT 4
Publications & ors., 539.
47. Ravencroft v. Herbat & anr. (1980) RPC 193 1
48. Raytheon Co’s Application [1993] RPC 427 12
49. Spelling Goldberg Productions Ltd. v. [1981] RPC 283. 3
B.P.C. Publishing Ltd.
50. Technograph Printed Circuits Ltd. v, [1972] RPC 346 16
Mills & Rockley (Electronics) Ltd.
51. Tinsley v. Lacey (1863) 1 H&M. 7
747
52. Trade Auxillary Co. v. Middlesbrough, (1889) 40 Ch.D. 7
etc., Association 425
53. Wang Laboratories Application [1991] RPC 463 11
54. Ward’s Application (1912) 29 RPC 79 8
55. Worne & Co. v. Seebhom (1888) 39 Ch. D. 7
73
56. Young v. Rosenthal (1884) 1 RPC 29 10

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 MEMORIAL FOR THE PLAINTIFF 4

NO. BOOKS
1. P. Narayanan, “Patent Law”, 4th Ed., 2006.
2. Copinger and Skone James, “Copyright Law”, 13th Ed., 1991.
3. P. Narayanan, “Copyright Law”, 1986.
4. V.A. Mohta, “Trade Marks, Passing Off and Franchising”, 1st Ed., 2004.
5. Iyengar, “The Copyright Act, 1957”, 6th Ed., 2000.
6. Merges, Menell, Lemley, Jorde, “Intellectual Property in the New Technological
Age”, 1997.
7. A. Illardi and Michael Blakeney, “International Encyclopedia of Intellectual
Property Treaties”, 1st Ed., 2004.
8. David Bainbridge, “Intellectual Property”, 5th Ed., 2002.
9. P. Narayanan, “Intellectual Property Law”, 2nd Ed., 1997.
10. B.L. Wadehra, “Law Relating to Patents, Trademarks, Copyright, Designs and
Geographical Indications”, 2nd Ed., 2000.
11. Prabbudha Ganguli, “Intellectual Property Rights”, 2nd Ed., 2003.
12. H.C. Black, “Black’s Law Dictionary”, 5th Ed., 1979.
13. Mulla, “Code of Civil Procedure”, 14th Ed., Volume 2, 1984.
14. Pollock & Mulla, “Indian Contract and Specific Relief Acts”, 12th Ed. Volume 2,
2001.
15. Pollock & Mulla, “Indian Contract and Specific Relief Acts”, 12th Ed. Volume 1,
2001.
16. Asian School of Cyber Laws, “IPR & Cyberspace – The Indian Perspective”,
2005.
17. P. Ramanatha Aiyar, “Law Lexicon”, 1997. Ed.
18. Sarkar, “Code of Civil Procedure”, 11th Ed., Volume 1, 2007.
19. Sarkar, “Code of Civil Procedure”, 11th Ed., Volume 2, 2007.
20. Ratanlal & Dhirajlal, “The Law of Torts”, 23rd Ed., 1997.
21. Justice G.P. Singh, “Principles of Statutory Interpretation”, 10th Ed., 2006.
22. Salmond & Heuston, “The Law of Torts”, 20th Ed., 1992.
23. Herbert Broom, “A Selection of Legal Maxims”, 10th Ed. 1939.
24. Kerly, “Law of Trade Marks and Trade Names”, 13th Ed., 2001.

25. Cornish & Llewelyn , “Intellectual Property: Patents, Copyright, Trade Marks
and Allied Rights” , 5th Ed., 2003.
26. J.A.L. Sterling, “World Copyright Law”, 1999.

27. Jeremy Philips, Robyn Durie, Ian Karet, “Whale on Copyright”, 5th Ed., 1997.

28. D.P. Mittal, “Taxmann’s New Law of Trade Marks, Passing Off & Geographical
Indications of Goods”, 2000.

29. Terrel, “The Law of Patents, 15th Ed., 2000.

30. David I Bainbridge, “Cases & Materials in Intellectual Property Law”, 1999.

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31. LPs Law series, “Copyright, Designs, Patents, Trademark”.

32. A Journal of Symbiosis Society’s Law College, “Revigorated IPR”, March
2004.

33. Arthur R. Miller and Michael H. Davis,, “Intellectual Property: Patents,

Trademarks and Copyright”.
34. Martin J. Alderman, Randall R. Rader, John R. Thomas, Harold C. Wegner,
“Cases and Materials on Patent Law”, 1998.

35. W.R. Cornish, “Cases and Materials on Intellectual Property”, 2nd Edition/4th
Edition.
36. W.R. Cornish, “Intellectual Property”, 3rd Edition.
37. P. Narayanan,“Copyrights and Industrial Designs”, 3rd Edition.
38. Jeremy Philips, “Butterworths Intellectual Property Handbook”, 2nd Edition.
39. S.M. Stewart, “International Copyright and Neighbouring Rights”, 2nd Edition.
40. K.C. Kailasam/ Ramu Vedaraman, “Law of Trademarks & Geographical
Indications”, 2003 Edition.

41. Jayashree Watal, “Intellectual Property In the WTO & Developing Countries”.

42. Lionel Bentley Brad Sherman, “Intellectual law”.

43. Guy Tritton, “Intellectual Property in Europe”, 1996.

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NO. MISCELLANEOUS
1. Berne Convention for the Protection of Literary and Artistic Works, 1971.
2. Agreement on Trade Related Aspects of Intellectual Property Rights, 1994.
3. Paris Convention, 1883.
4. Universal Copyright Convention, 1971.
5. Supreme Court Cases (SCC) Online.
6. www.westlaw.com
7. www.worldlii.org
8. www.manupatra.com
9. www.indialawinfo.com
10. www.vakilnol.com
11. www.judis.nic.in
12. www.indiacode.nic.in
13. www.lexsite.com
14. www.intelproplaw.com
15. www.legalpundits.com

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STATEMENT OF JURISDICTION

With regard to the circumstances that have been presented in the instant case, the Plaintiff

seeks permission to appear before a Special Bench of the Hon’ble High Court as per:

 Section 62(1) of the Copyright Act, 1957 which states as under:

“Every suit or other civil proceeding arising under this Chapter in respect of the

infringement of copyright in any work or the infringement of any other right

conferred by this act shall be instituted in the district court having jurisdiction.”

 Section 134(1) of the Trade Marks Act, 1999:

“No suit-
(a) for the infringement of a registered trademark; or
(b) relating to any right in a registered trademark; or
(c) for passing off arising out of the use by the defendant of any trademark which is
identical with or deceptively similar to any trademark, whether registered or
unregistered,
shall be instituted in any court inferior to a district court having jurisdiction to try the
suit.”

 The Plaintiff further seeks to avail of the inherent powers of the Court under Section
151 of the Code of Civil Procedure, 1908, for invoking jurisdiction to contest the
validity of the patent.

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STATEMENT OF FACTS
1. Producer A engaged a team of students to research possible parameters that could have
defined the success of 50 pre-determined blockbusters, selected by the Producer. After
exhaustive research, a list of success factors was compiled and Producer A, using his
discretion, evolved a “success formula” by identifying relevant elements from the same.
He applied for protection of this formula under the Patents Act.

2. The success formula relied upon a dynamic database consisting of all the parameters,
used by a protocol having pre-defined steps which through a series of permutations and
combinations could predict the success of a film with reasonable certainty. The defendant
additionally seeks copyright protection for the formula as an artistic work with the
language of the work indicated as “Bollywood Lingo”.

3. The Producer briefs lyricists and playback singers to adapt the lyrics and music from past
hit songs, using special effects and handpicks the best actors from past hit movies to star
in his new production. Although they have never been cast together, the actors were
given the same screen names as were used in the past films.

4. The defendant applied for trademark registration for the title of his film, which is an
amalgamation of 3 hit movie titles.

5. The actors promoted the movie with reference to characters of the past. The movie proves
to be a hit and raises nostalgic memories in the minds of the viewers through its songs
and dialogues which are found to emanate from an effective use of a thesaurus.

6. A newly formed association of past producers files a suit for injunction against Producer
A claiming infringement of trademarks due to the title of the movie and violation of
copyright on account of substantial copying of a developed idea. The plaintiff further
contests the validity of the patent on the ground of obviousness, although the same is
under challenge before the Patent office.

7. The filing of the suit causes a dip in the box office proceeds and an increase in the re-
screening of past hits. Subsequently, the defendant filed a counter suit for defamation as a
result of negative publicity. Both the parties also claim damages citing their respective
parameters for the evolution of damages.

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ISSUES FOR CONSIDERATION

I. Whether an infringement of copyright has been committed by Producer A.

II. Whether the Patent applied for by Producer A is valid.

III. Whether the title of Producer A’s film constitutes an infringement of trademark rights.

IV. Whether the Defendant’s claim of defamation is tenable.

V. Whether the Plaintiff is entitled to Injunctive Relief and damages.

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SUMMARY OF ARGUMENTS

I. An infringement of copyright has been committed by Producer A.

 The adaptation of songs constitutes an infringement of copyright under Section 14(d)(i)

read with Section 51 of the Copyright Act, 1957.
 The usage of similar dialogues and identical screen names amounts to substantial
copying.

II. The Patent applied for by Producer A is invalid on the ground of obviousness.

 The success formula is not a patentable invention under Section 3(k), 3(l) and 3(m) of the
Patents Act, 1970.
 Its patentability is questionable on the ground of obviousness under Section 25(1)(e).

III. The title of Producer A’s film constitutes an infringement of trademark rights.

 The title of the defendant’s movie is an infringement of trademark on grounds of

deceptive similarity under Section 29(2) (b) of the Trade Marks Act.
 An intention to deceive on the part of the defendant establishes a prima facie case for
infringement.

IV. The Defendant’s claim of defamation is untenable.

 It is contrary to the public policy to consider a plaint as defamatory.

 Judicial proceedings enjoy immunity due to the principle of absolute privilege.

V. The Plaintiff is entitled to Injunctive Relief and damages.

 The infringement of the plaintiff’s copyright and trademark rights should be remedied
with injunctive relief as per Order 39 R 1 of the Code of Civil Procedure, 1908 as well as
damages on final adjudication.
 An interim injunction to restrain the defendant from availing of his patent rights as per
S.11A(7) should also be granted.

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ARGUMENTS ADVANCED
I. An infringement of copyright has been committed by Producer A.

It is a well established principle that copyright does not subsist in ideas or methods, but is
confined to their expression.1 It has been contended on behalf of Producer A that his film’s
originality lies in its plot. In the instant case, the names of the characters, the dialogues and
the songs of past blockbusters have been copied. Even if the idea or the plot of A’s film is
unique, the fact that the aforementioned forms of expression have been copied, clearly
indicates an infringement of copyright under Section 51(a)(i) of the Copyright Act, 1957. 2

Section 14(d)(i) of the Copyright Act, gives the owner of copyright an exclusive right to
make a copy of the film, including any part thereof. Hence, when an exact or identical copy
of the film is made, the question of substantiality does not arise. It has been held that the
making of the copy of a single frame of a film is an infringement of copyright. 3 Since the
defendant has incorporated duplicate copies of the songs of past films in his work, this fact
would per se amount to a copyright infringement.

Where that which has been copied is not identical but similar, the Court has to decide
whether the defendant’s work incorporates a substantial part of the skill and labour involved
in the creation of the claimant’s work. 4 The dialogues and arrangement of characters in A’s
film are undoubtedly similar to those in previous films. One of the surest and safest tests to
determine whether or not there has been a violation of copyright is to see if the viewer gets an
unmistakable impression that the subsequent work appears to be a copy of the original. 5 In
the instant case, nostalgic memories were evoked in the minds of the viewers, which no
doubt indicates that the abovementioned test has been satisfied.
1
Hollinrake v. Truswell, (1894) 3 Ch. 420; Hogg v. Scott, (1874) LR 18 Eq 444; Herman Pictures N.V. v. Osborne,
(1967) 1 WLR 723; Ravencroft v. Herbat and another, (1980) RPC 193; R.G. Anand v. Delux Films, AIR 1978 SC
1613; Jefferys (C.) v. Boosey (T.), (1855) 4 HLC 815; Donoghue v. Allied Newspapers Ltd., [1938] Ch. 106 at 109
and 110; Gleeson v. H.R. Denne Ltd., [1975] RPC 471; L.B. (Plastics) Ltd. v. Swish Products Ltd., [1979] RPC 551
(HL); L.A. Randall Pty. Ltd. v. Millman Services Pty. Ltd., [1977-78] 17 ALR 140
2
K.Murrari v Muppalla Ranganayakamma, (1987) 2 ALT 699; Kleeneze Ltd. v. D.R.G. (UK) Ltd., [1984] FSR 399;
George Ward (Moxley) Ltd. v. Richard Sankey Ltd., [1988] FSR 66; Green v. Broadcasting Corp. of New Zealand,
[1989] RPC 700.
3
Spelling Goldberg Productions Ltd. v. B.P.C. Publishing Ltd., [1981] RPC 283.
4
Designers’ Guild Ltd. v. Russell Williams Ltd., [2001] FSR 113. See also Article 12, the Berne Copyright
Convention (Paris Text, 1971); Orient Longman Ltd. v. Inderjit Anand & anr., 2005 (30) PTC 11 (Del); Pepsico Inc.
& ors. v. Hindustan Coca Cola Ltd. & anr., 2003 (27) PTC 305 (Del); Pitilite Industries Ltd. v. S.M. Associates &
ors., 2003 (5) Bom CR 295; Ratna Sagar Pvt. Ltd. v. Trisea Publications & ors., 64 (1996) DLT 539.
5
R.G. Anand v. Delux Films, AIR 1978 SC 1613 at 1617; Ladbroke (Football) Ltd v. William Hill (Football), All ER
(1964) 1 WLR 2; Hamstaengal v. Smith & Sons, (1905) 1 Ch. 519; Mohendra Chandra v. Emperor, AIR 1928 C
359 : 33 CWN 179; Franz Hanfstaengal v. H.R Baines & Co., (1895) AC 20; Rai Toys Industries v. Munir Printing
Press, (1982) PTC 85 at 87

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The test of substantiality is qualitative rather than quantitative. 6 Hence, the mere fact that the
copied portion forms a small part of the original work is irrelevant, as long as it can be
established that this part is distinctive. 7 In the light of the fact that Producer A has copied
those portions of past films that are original, the infringement of copyright is evident.

II. The Patent applied for by Producer A is invalid on the ground of obviousness.

At the outset, it is stated that a mathematical or business method, computer program or an

algorithm cannot be patented by virtue of Section 3(k) of the Patents Act, 1970. A patent
cannot be obtained for a mere method or plan – a plan for becoming rich, or a plan for the
efficient conduct of business. 8 It is humbly submitted that the success formula prepared by
Producer A is merely a business plan, consisting of pre-defined steps, 9 which was used for
creating a blockbuster film. The formula may also be construed as a mathematical method, as
it predicts the success of a film with “reasonable certainty” and relies upon various
“permutations and combinations” of success parameters. Hence, it does not afford subject
matter for a patent.10

Further, the success formula may also be considered a computer program. This is due to the
fact that it is a dynamic database of parameters, which produces a different output, based on
the input provided. A software used to generate and manipulate images of crystal structures
of inorganic material was not patentable as the software did not provide any technical
advantage, but only replaced the manual plastic models. 11 Similarly, the success formula at
most only expedites a mental process, 12 and is devoid of any inventive step 13. The defendant
has contended that the success formula is an original artistic work. However, by virtue of the

6
Boosey v. Whight (1900) 1 Ch. 122; Sillitoe v. McGraw Hill Book Co. (1983) FSR 545 at 549-550
7
Catnic Components Ltd. v. Hill and Smith Ltd., [1982] RPC 183, 223; Tinsley v. Lacey, (1863) 1 H&M. 747; Worne
& Co. v. Seebhom, (1888) 39 Ch. D. 73; Howkes & Son (London) Ltd. v. Paramount Film Service Ltd., [1934] Ch.
593; Kelly v. Hooper, (1840) 4 Jur. 21; Trade Auxillary Co. v. Middlesbrough, etc., Association, (1889) 40 Ch.D.
425.
8
Cooper’s Application, (1902) 19 RPC 53. See also Hiller’s Application, [1969] RPC 267 at 268; D.A. & K’s
Application, (1926) 43 RPC 154; E.S.P.’s Application, (1945) 62 RPC 87; Ward’s Application, (1912) 29 RPC 79;
R’s Application, (1923) 40 RPC 465.
9
See fact-sheet, page 1.
10
Young v. Rosenthal, (1884) 1 RPC 29.
11
Fujitsu Ltd’s Application, [1997] RPC 608. See also Hitachi’s Application, [1991] RPC 415; Gale’s Application,
[1991] RPC 305; Merril Lynch’s Application, [1989] RPC 561 (CA); Wang Laboratories Application, [1991] RPC
463.
12
Section 3(m), Patents Act, 1970. See Raytheon Co’s Application, [1993] RPC 427.
13
Section 2(ja), Patents Act, 1970.

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 MEMORIAL FOR THE PLAINTIFF 13

fact that an artistic work cannot be patented, 14 he has contradicted himself by seeking to
patent the success formula.

Without prejudice to the aforementioned argument, it is also contended that the success
formula does not satisfy the ground of non-obviousness and inventive step, as laid down in
Section 25(1)(e) of the Patents Act.15 In judging the question of obviousness, the hypothetical
addressee is a person who is well acquainted with workshop technique but is incapable of a
scintilla of invention.16 In the process of making the success formula, the producer has
identified certain parameters including the movie theme, dialogues and music which would
be instrumental in determining the success of a film. It is submitted that these parameters
would be obvious to any producer. Further, on receiving the research material, the producer
“used his discretion” to choose certain elements of relevance. No research was done in the
identification of these elements, which eventually formed the success formula. The plaintiffs
submit that any producer would be able to use his discretion and identify such elements.
Hence, the success formula fails to satisfy the criterion of inventive step. Since a prima facie
case of obviousness has been made out, the evidential burden shifts onto the applicant of the
patent.17

III. The title of Producer A’s film constitutes an infringement of trademark rights.

It is respectfully submitted that the title of the film of Producer A comes within the ambit of
the term “deceptively similar”, as defined in Section 2(1)(h) of the Trade Marks Act, 1999. 18
The precondition of deceptive similarity is added and included within Section 29(1) which
incorporates the expression “identical with or deceptively similar to” and Section 29(2)(b)
which embraces its variant, “identity or similarity of the goods and services”.
In interpreting the term “deceptive similarity”, what needs to be established is a “likelihood
of confusion” as opposed to actual and proven confusion. 19 In the case of Harilal Prabhudas

14
Section 3(l), Patents Act, 1970.
15
See Also Article 27 of the Agreement on Trade Related Aspects of Intellectual Property Rights.
16
Technograph Printed Circuits Ltd. v, Mills & Rockley (Electronics) Ltd., [1972] RPC 346 at 355 (HL). See also
Ganedro Nath Banerjee v. Dhanpal Das Gupta, AIR 1945 Oudh 6 at 9; Parks-Cramer v Thornton, [1966] RPC 407;
Bishwanath Prasad Radhey Shyam v. Hindustan Metal Industries, (1979) 2 SCC 511; Fabwerke Hoechst v.
Unichem Laboratories Ltd., AIR 1969 Bom 255.
17
Digussa Huls SA v. The Comptroller General of Patents, [2005] RPC 29 in paras 26 & 27.
18
Section 2(1)(h) of the Trade Marks Act, 1999, reads: “a mark shall be deemed to be deceptively similar to another
mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion.”
19
H.C.Dixon & Sons Ltd. v. Geo Richardson & Co. Ltd., 50 RPC 36 at 374; Jallineck’s Appl., 1946 63 RPC 59;
Balkrishna Hatcheries v. Nando’s International Ltd. and anr., 2007 (34) PTC 677 (Bom); See Also Article 16(1) of
the Agreement on Trade Related Aspects of Intellectual Property Rights; Article 6 BIS of the Paris Convention, 1883.

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 MEMORIAL FOR THE PLAINTIFF 14

v. Ganesh Trading Company20, it was held that the touchstone upon which the Court must
determine an infringement claim is the overall similarity of the impugned trademarks rather
than a “microscopic examination” and whether a person of average intelligence and
imperfect recollection is unable to set them apart on a first impression. Since the film title
consists of an amalgamation of three hit movie titles, and given that the actors have been
advertising with reference to characters of the past; the prerequisites of deceptively similarity
are met and there exists a reasonable likelihood of confusion in the mind of the ordinary
viewers.

While it is well established that intention is of no consequence in a claim for trademark

infringement, it has been held that proof of such intention mandates a prima facie inference
of infringement.21 The acts of the defendant sufficiently establish his fraudulent intentions,
motivated to derive unjust gain from the success of the past films.

IV. The Defendant’s claim of defamation is untenable.

At the outset, it is submitted that the claim of defamation fails if the alleged defamatory
matter is true.22 Public policy requires that any person who suffers a legal or material injury
due to violation of his rights should be able to seek a redressal without fear or prejudice. In
furtherance of public interest in the administration of justice; as per the doctrine of absolute
privilege, all judicial as well as quasi-judicial proceedings are immune from liability. It is
therefore submitted that the claim of defamation is wholly misconceived and frivolous.

V. The Plaintiff is entitled to Injunctive Relief and damages

The plaintiff seeks a temporary injunction under Order 39 R 1 of the Code of Civil
Procedure, 1908, to restrain the defendant from:
1. Committing any further violation of trademark rights;
2. Exercising the rights and privileges that vest in him by virtue of Section 11A(7) of
the Patents Act, 1970;
3. Committing any further infringement of copyright; until final adjudication when the
plaintiff shall seek a perpetual injunction under S.38 of the Specific Relief Act, 1963.

20
AIR 1984 Bom. 218.
21
Parker-Knoll v. Knoll International, (1962) RPC 265 at 273-274; Ash v. Invicta, (1912) 29 RPC 465 (HL) at 475.
22
Raghunath Damodhar v. Janardhan Gopal, (1891) ILR 15 Bom 599.

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 MEMORIAL FOR THE PLAINTIFF 15

The plaintiff further seeks damages for losses suffered due to infringement.

PRAYER
Therefore, in the light of the questions raised, arguments advanced and authorities

cited, the counsel for the plaintiff humbly prays for the following remedies:

 A temporary injunction to restrain the defendant from infringing the copyright

and trademark rights of the plaintiff;

 A temporary injunction to prevent the defendant from enjoying the rights

accruing to him under section 11A(7) of the Patents Act;

 A perpetual injunction and appropriate damages upon the final adjudication of

the suit.

10TH RAJ ANAND INTELLECTUAL PROPERTY RIGHTS MOOT COURT COMPETITION, 2007