Professional Documents
Culture Documents
TEAM CODE:
V.
TABLE OF CONTENTS
INDEX OF AUTHORITIES
LIST OF ABBREVATTIONS
TABLES OF CASES REFERRED
BOOKS REFERRED
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
STATEMENT OF ISSUES
SUMMARY OF ARGUMENTS
ARGUMENT ADVANCED
I. WHETHER THE WRIT PETITION FILED IS MAINTAINABLE BEFOR
THE HIGH COURT
II. DOES THE DEFENDANTS ACTION CONSTITUTE INFRINGMENT OF
COPYRIGHT IN THE WORK
III. WHETHER THE TRADEMARK OBTAINED BY THE DEFENDENTS
SIDE FOR THR WORD BOROMIR VALID AND DOES IT AMOUNT TO
INFRINGMENT OF TRADE MARK
PRAYER
THE INTRA MOOT COURT COMPETITION, 2016
STATEMENT OF JURISDICTION
The petitioner humbly submits this memorandum for the petition filed before this
honorable court. The petition invokes its writ jurisdiction under article 226 of the
constitution of India. It sets forth the facts and the laws on which the claims are based.
THE INTRA MOOT COURT COMPETITION, 2016
INDEX OF AUTHORITIES
LIST OF ABBREVATIONS
london press ltd v university tutorial press ltd 1916 2 chd 601
macmillan and co ltd v k&j cooper AIR 1924 PC 75
r.g.anandh v delux films AIR 1978 SC 1613: 1978 4 SCC 118
firm koonerji bechari lal v firm adam hazi pir mohammed AIR 1944 SIND 21
THE INTRA MOOT COURT COMPETITION, 2016
STATEMENT OF FACTS
I. Jack samuelson an author who skyrocketed into heights of fame and glory
after publishing his most prized and acclaimed work the ballad of malice and
power. It is fantasy fiction which mainly revolves around kings magical
creatures in their quest for power t. Samuelson published the ballad of malice
and power in a series of 7 books. The first book released in1994 and was titled
flagon of dreams received overall positive reviews from the critics and became
of the bestsellers. Later he released the rest of the books in regular intervals.
the last one was released on 2014.digital and printed versions were available
in us members of the European union , Canada, china and the Indian
subcontinent.
II. Later brightwalker studios a production company closed a deal with jack
samuelson and acquired exclusive rights to adapt his work into a full fledged
television valar doharis :the beginning . the show was available for viewership
in India through an online portal named zoom in .
III. Ms earl grey a huge fan of the franchise was very much taken by a particular
character named boromir bohemia a character though very much important
finds very little mention in the TV series. However she was very much
disappointed that the character did not receive as much importance as it did
deserve. She started her very own fan fiction in which the story line revolved
around boromior as the protagonist even though its essence was based on
samuelsons version. The fanfiction was titled as the bohemian rhapsody. The
bohemian rhapsody garnered worldwide popularity and soon became a
fanfavourite earl published her fanfiction in her blog the pickwick papers.
THE INTRA MOOT COURT COMPETITION, 2016
STATEMENT OF ISSUES
ISSUE I: whether the writ petition filed by the petitioner is maintainable before the
high court?
ISSUE II: Does the defendants action constitute infringement of copyright in the
work
ISSUE III: whether the trademark obtained by the defendants side for the word
boromir is valid and does it amount to infringement to trademark?
THE INTRA MOOT COURT COMPETITION, 2016
STATEMENT OF ARGUMENTS
1. whether the writ petition filed by the petitioner is maintainable before the high
court?
The writ petition filed by the petitioner is maintainable. Firstly sec 32 of the indian
copy right act, 1957 states the when there is a infringement of copyright the owner
can file it in the district court with appropriate jurisdiction . secondly in certain cases
the high court has original jurisdiction in which the high court itself acts as a district
court.
3. whether the trademark obtained by the defendants side for the word boromir
is valid and does it amount to infringement to trademark?
Trademark obtained by the defendant is very much valid , firstly it very much falls
under the meaning of the word trademark as in the case of koonerji bechari lal v firm
adam hazi pir mohammed AIR 1944 SIND 21 and it does not amount to infringement
as it was not the creation of one of the defendents.
THE INTRA MOOT COURT COMPETITION, 2016
ARGUMENT ADVANCED
It is most respectfully submitted before this honorable court that this writ filed by the
petitioner is maintainable in this honorable high court of Bombay. This is insisted in
accordance with art 226 of the constitution of India.
The definition of the district court mentioned in the 2act should be looked at using the
cpc.
District means the local limits of the jurisdiction of a principal civil court of
original jurisdiction of a principal civil court of original jurisdiction (hereinafter
called the district court )and includes the local limits of the ordinary original civil
jurisdiction of a high court.
Hence wherever a high court has original jurisdiction as in the case of Mumbai where
the high court itself is considered as the district court. All the other places where the
high court does not have jurisdiction it will be the civil court for that district.
The counsel for the defendant most humbly put before the honble court that the
action of the defendants namely ms earl grey and edified comics ltd does not amount
to infringement of copyright ,moreover it can be classified as an original literary work
.
As in the case of university of london press ltd v university tutorial press ltd 3, the
word original does not mean that the word must be the expression of original or
inventive thought. the copyright act is not concerned with the origin of ideas but with
the expression of thought and on the case of literary work with the expression of
thought in printing or writing the originality that is required relates to the expression
of the thought, but the act does not require that the expression must be in a original or
novel form , but that work must not be copied from another work.
In the case of macmillan and co ltd v k&j cooper4 the judicial committee approved
of the above observations by holding that the question is not whether the material
which are used are entirely new and had never been used before or even that they
have never been used before for the purpose , but the true question is whether the
same pln , arrangement and combination of materials have been used before for the
same purposes or for any other purposes. If they have not , then the plaintiff is entitles
to a copyright although he may have gathered hints for his plan and arrangement or
parts of his plan and arrangement from existing and known sources. He may have
borrowed much of his materials from other , but if they are combined in a different
manner from what was in use before , is entitled to a copyright .
From the above percepts of two judgments it has become very much evident that the
copyright a act lays much more importance on the expression of ideas and thoughts
rather than their mere origin. This notion has been stressed again in the case of
r.g.anandh v delux films5 ,it was declared there can be no copyright in an idea, subject
, themes , plots, historical or legendary facts there needs to be an originality in the
form of expression fazal ali ,j after considering a number of authorities- Indian,
English and American derived the following
there can be no copyright in an idea , subject matter , themes , plots or
historical /legendary facts and violation of the copyright in such cases is
confined to the from , arrangement and manner and expression of the idea by
the author of the copyrighted work what is protected is not original thought or
information , but the original expression of thought or information in some
concrete form.
Where the same idea is being developed in a different manner, it is manifest
that the source being common, similarities are bound to occur. But if the
defendants work is nothing but a literal imitation of the copyrighted work
with some variations here and there, it would amount to violation of copyright.
Thus the copy must be substantial and material one. a copy is that which
comes so near the original as to give to every person seeing it the idea created
by the original. This is a sure and safe test to determine the violation of
copyright.
Moreover as council for the defendants we would like to stress the importance of the
fact that neither bsl nor jack samuelson undertook any kind of legal action after they
came to know about the fanfiction that earl grey had published in her own blog the
pickwick papers. This very much highlights their sinister intentions amounting to
estoppel with regard to the defendant.
III. Whether the trademark obtained by the defendants side for the
word boromir is valid and does it amount to infringement to
trademark?
The counsel for the defendants humbly put forward before the honble court that the
trademark obtained by the defendants side for the word boromir is very much valid.
We have placed our justifications in the following constructs:
as stated in the verdict of firm koonerji bechari lal v firm adam hazi pir mohammed7
has observed that a trademark is some symbol consisting in general , of a picture ,
label , word or words , which is applied or attached to goods of a trader so as to
distinguish them as his from similar goods of other traders and to identify them as his
goods or as those of his successors in the business in which they are produced or put
forward for sale .
from the above stated judgment it is very much clear that the trademark obtained for
the word bormir is valid and very much falls within ambit of the definition of
trademark as provided in the s.(2)(zb) of the indian copyright act
trademark journal put the applications published in the journal on the internet ,
website or any other electronic media .
1) The taking of any of any essential feature of the mark or taking the whole
of the mark and making a few additions and alterations would cost
infringement.
2) The infringing mark must be used in the course of trade i.e.,regular trade
wherein the proprietor of the mark is engaged .
3) The use of the infringing mark must be printed or usual representation of
the mark in advertisements , invoice or bills .
The above given provisions are the essentials for infringement .
relating this fact to the case at hand we infer that it is the petitioners who have
infringed our trademark by unlawfull usage of the word boromir , for which a
trademark was obtained from the side of the defendant.
If the infringer has absolutely copied the mark and made a facsimile representation of
it, no further evidence is required. When the similarities are so close as to make it
impossible to suppose that such marks were devised independently of each other.
THE INTRA MOOT COURT COMPETITION, 2016
PRAYER
Wherefore in the lights of the facts stated , issues raised , arguments advanced and
authorities cited it is most humbly and respectfully prayed befpore this honble
high court of Bombay that it may be pleased to :
Hold that the writ petition filed by the petitioner is maintainable before the
high court
Hold that the trademark obtained by the defendants side for the word boromir
is valid and does it amount to infringement to trademark
For this act of kindness, the petitioner(s) shall duty bound forever party.
Respectfully submitted by
COUNSELS FOR THE PETITIONER(S)