Warner Bros. Entertainment Inc. and Anr. Vs. Harinder Kohli and Ors.
155 (2008) DLT 56
Plaintiffs were registered proprietors for the word mark “HARRY POTTER”. Plaintiffs claimed that the movie “HARI PUTTAR” is an infringing variant of the trademark “HARRY POTTER”.
Defendants are passing off their film as that of the motion picture of Plaintiff.
Title for the film were the words “Hari Puttar – A Comedy of Terrors”. It is submitted by him that as the title itself reveals the theme of the film has nothing to do with “HARRY POTTER”.
Plaintiffs have concealed material facts from the Hon’ble Court, qua their knowledge of use of ‘HARI PUTTAR’ and therefore, the suit is delayed and the Plaintiffs have acquiesced, their rights, if any.
Harry Potter films are targeted to meet the entertainment needs of an elite and exclusive audience. An audience will be able to make out difference between a film based on a Harry Potter book on the one hand and a film which is a Punjabi comedy on the other.
It is not the case of a consumer good or product, which stands on an entirely different footing. Necessarily, the yardstick must also differ, bearing in mind the fact that a consumer product such as a soap or even a pharmaceutical product may be purchased by an unwary purchaser or even an illiterate one, but the possibility of an unlettered audience viewing a HARRY POTTER movie are remote, to say the least.
An illiterate or semi-literate movie viewer, would never be able to relate ‘HARI PUTTAR’ with a Harry Potter film or book. Conversely, an educated person, is not likely to be misled.
Delay in approaching the Court, so far as grant of equitable relief is concerned, is always fatal and the Plaintiffs by their course of conduct are disentitled to the injunction prayed for as they had prior knowledge but chose to come to Court only on 11th hour.