Advertising Campaign Can Be Protected Under Intellectual Property Law If It Has Become Distinctive, Threshold High
Case: Bright Lifecare Pvt. Ltd. V. Vini Cosmetics Pvt. Ltd. & Anr.
Coram: Justice Pratibha M Singh
Case No.: CS(COMM) 144/2022
Court Observation: “Parties which manufacture and sell products expend enormous time, effort, energy and investment in creation of advertising campaigns. They usually engage creative agencies and advertising agencies who render them the services for making these campaigns. Such campaigns are a result of painstaking effort of creative directors, artists, lyricists, slogan writers, cartoonists etc., who work in collaboration with marketing teams for making such campaigns. Thus, these campaigns and commercials are extremely thought out, deliberate and also determine the success/failure of a product. Even a ten second commercial involves enormous creativity and originality. Thus, an advertising campaign including commercials are undoubtedly protectable under intellectual property law,”
“Thus, in law, an advertising campaign, if it signifies the source and has become distinctive of the Plaintiff, can be granted protection. The threshold for establishing distinctiveness would however be quite high.”
“There can be no monopoly or exclusivity on the use of the word ‘ZIDD’ and ‘ZIDDI’ as an idea to show perseverance. However, 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,”
“There is however no restraint, upon Defendant No.1 from using the word or expression ‘ZIDD’ or ‘ZIDDI’ in a manner so as to signify or describe long lasting nature of the deodorant/perfume in a manner which is not similar or identical to that of the Plaintiff, so long as it is not used as a trade mark,”
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