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Bombay HC Grants Interim Injunction Against 'Andaman Big Bro' For Infringement of Endelmol's Trademark [Read Order]

Nitish Kashyap
25 Feb 2020 3:39 PM GMT
Bombay HC Grants Interim Injunction Against Andaman Big Bro For Infringement of Endelmols Trademark [Read Order]
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The Bombay High Court on Friday granted relief to Endelmol Shine Group, which owns the trademark Big Brother, and directed Andaman Xtasea Private Limited to stop using the name 'Andaman Big Bro' for their show.

Justice BP Colabawalla heard Endemol's interim application in their commercial suit pressing for ad-interim reliefs.

Advocate Hiren Kamod appeared for the plaintiff and stated that Endemol is the first owner of the copyright subsisting in the format/content production bible of the show 'Big Brother' which qualifies as the Original Literary Work under the Copyright Act, 1957. The show which first aired in 1998 became immensely popular around the world and as a result Endemol licensed the format 'Big Brother' to various entities across the world to make their own adaptations of the Production Bible of 'Big Brother', Kamod said.

As per Endemol's practice, the right to produce a local language version of the 'Big Brother' format is issued to a broadcaster and the broadcaster in turn appoints an entity for production of that language version of the format. Endemol India's (Plaintiff No.3) 'Bigg Boss' is based on the said Production Bible of the show "Big Brother", even though they have made minor variations to the Indian reality TV show.

Kamod stated that a unique and consistent component featuring across the various seasons of Plaintiff No.3's Bigg Boss TV show, is the device of an eye which is symbolic of the character Bigg Boss on the show. 'Bigg Boss' prominently uses a unique device of eye in each season. This device of the eye is found not only in respect to 'Bigg Boss' but is also featured in some form or other in Endemol's 'Big Brother' TV shows.

However, it was submitted that defendants were not only using an identical and/or deceptively similar mark "Big Boss" (in their show "Andaman Big Boss") but also the device of eye which is identical and / or deceptively similar to Endemol's "Big Brother" trademarks. Furthermore, a tag line similar to the one used for "Big Boss" has been used by the defendants, Kamod said.

Plaintiffs also referred to an advertisement by the defendants on social media calling for applications to register for their show. Thereafter, a cease and desist notice dated November 5, 2019 was sent by Endemol India calling upon the Defendants to cease and desist from advertising or publishing the said show.

Upon the receipt of the said cease and desist notice, the defendants contacted plaintiffs' attorney over the telephone and stated that it was not their intention to infringe upon the rights of the plaintiffs and that they shall take down the YouTube video and Facebook post and change the name of the show.

However, the plaintiff discovered that defendants had simply changed the name of the show to "Andaman Big Bro' which was contrary to what was assured by the defendants.

Finally, after hearing submissions from both parties Court observed-

"Prima facie, there is no manner of doubt that the rival marks/name/device of eye/taglines are identical and/or deceptively similar to each other. I am of the opinion that the similarity between the rival marks/name/device of eye/taglines cannot be a matter of coincidence. The acts of the Defendants are nothing but a systematic attempt to come as close as possible to the Plaintiff's trademarks and show so as to deceive the public or somehow associate the impugned mark and show with the Plaintiffs. The Defendants' impugned device of eye and BIGG BOSS mark are a reproduction / substantial reproduction of the Plaintiffs' device of eye / BIGG BOSS mark. I agree with the submissions of Mr. Kamod that the Defendants are misleading the public at large for their own benefit."

Thus, interim relief was granted to the plaintiffs.

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