The Delhi High Court, on Wednesday, refused to grant ex-parte injunction against an upcoming movie titled 'Tera Intezaar' for the song 'Barbie girl'.
The Court has been approached by toy-maker Mattel, Inc., which claims to be the owner of the 'Barbie' trademark. Mattel has alleged that the title and the lyrics of the song have used their registered and well known trademark without their permission and "in a manner antagonistic to the values and interests of the customers target base, the plaintiffs cater to".
It has further submitted that the actress featured in the song is a prominent figure from the adult entertainment industry (referring to Ms. Sunny Leone) and has submitted that the song is not suitable for children. Such attributes, it submits, "are provocative and inappropriate for younger girls and children, tarnishing and degrading the distinctive quality of the mark “BARBIE”".
During the hearing, Justice Rajiv Sahai Endlaw noted that the Court had been approached even though Mattel was asked to "chill" by a US Court of Appeals. He further noted that the US Court had held that music companies' use of 'Barbie' in a song was not an infringement of the toy manufacturer's trademark associated with the doll.
Justice Endlaw then noted that the CBFC had been tasked with imposition of "prior restraints" on movies. It, therefore, opined that once a film is cleared by the CBFC, it is presumed that the same is not defamatory.
"If after a film has been so cleared by CBFC, the Courts were to act as super Censor Board at the mere asking, it will have the potential of imposing arbitrary and at times irrational prior restraints causing severe damage to the right of freedom and expression," he added.
The Court further explained that such an ex parte order would send a wrong signal to the public at large since CBFC has not granted a certificate to the movie and observed, "There is another reason for which I am of the opinion that no case for grant of ex parte order sought, restraining the defendants from releasing the film Tera Intezaar with the impugned song, ought not to be granted. The newspapers and the stories on the electronic news media in the country are today widely broadcasting the demand by one section of the society for a ban to another film. The petitions filed in the Supreme Court in this regard have not met with any success and have been disposed of as premature owing to the CBFC having not granted certificate to the film as yet. I am of the opinion that grant of any order as sought is likely to send a wrong signal to the public at large."
It then directed that notice be issued to the defendants, to be returnable on 30 November. It, however, left it open to the Plaintiffs to call upon the defendants to delete the word "Barbie" from the impugned song, informing them that their failure to do so would make them liable to pay damages.