In a recent case before the Hon’ble Bombay High Court, the product ‘ZeePlex’ of the Zee Entertainment Enterprises Limited (“Zee”) was questioned and the Court in its order dated October 01, 2020 refused to grant ad-interim injunction against Zee for using the word ‘Plex’ in its new online movie channel service observing that the practice of parties especially in intellectual property rights cases moving Court at the last minute cannot be tolerated.
In the present case[1], the Plaintiff - Plex, Inc filed an interim application seeking passing off claim against Zee Entertainment Enterprises Limited for using the word ‘Plex’ in its new platform called ‘ZeePlex’ which was supposed to be launched on October 2, 2020. In its defense, Zee noted that it had announced its proposed launch of what it called the ‘cinema-to-home’ pay-per-view service on September 1, 2020.
The Plaintiff asserted that they adopted the mark ‘Plex’ in May 2008 in the United States. Their business is essentially a software or combination of software and hardware that allows a user/subscriber to share media content over what is called a media server.
The Court concluded that there is no sufficient material from the Plaintiff to be able to establish a prima facie case and its reputation at least within India, whatever maybe its reputation, registrations and sales in other jurisdictions. In contrast, there is the much greater reputation and standing of Zee amongst subscribers. Further, the plaintiff was unable to show any anticipated injury.
The 11th hour
In the recent past, the courts have seen a spurt in request for injunctions at the eleventh hour especially arising from the entertainment industry against release of movies, web series, etc. Simply put, parties file for injunction just before the release of such movies, etc. even though the announcement of such programs precedes the release by a large margin and plaintiffs could have easily moved court at an earlier time.
To the court’s annoyance, a large number of these last-minute or eleventh-hour cases are meritless and were vexatious in nature. Tired of this litany of wastage of the court’s time and intelligence, they decided to impose costs on such frivolous litigation matters.
Justice Khehar was the pioneer in imposing costs on litigants due to their frivolous and vexatious Special Leave Petitions (SLPs) in 2016. He maintained that the costs were justified to maintain judicial discipline in the court. Thus, this move by the Supreme Court judge came in light of the persistence of a few litigators who had meritless SLPs and indulged in wasting the time of the court. Further, in another case[2] the court laid down that any abuse of the process of court must be dealt with in a serious fashion and that the legal system must not be exploited by frivolous litigants.
In Karnataka High Court on a matter[3] of eleventh-hour filing, the judge commented that it is trite to state that a litigant who sleeps over his/her interest or rights and approached the court at the eleventh hour, cannot expect the court to rush for his/her rescue
The Pilot: Phillauri
The frontrunner in the endeavor of imposing costs on eleventh-hour litigation is Justice GS Patel of the Bombay High Court. He began the imposition with the case of Dashrath B. Rathod and Ors. v. Fox Star Studios India Private Ltd[4] in 2017.
The Plaintiff in the case was himself a Bhojpuri actor and producer who claimed that the film Phillauri was allegedly a copy of a movie titled Mangal Phera which released in 2013 in the Bhojpuri, Gujarati and Nepali languages.
While considering how the two works of art were similar, the court also noted that the trailer of the film in question had been released on February 6, 2017 stating the theatrical release of the film to be on March 24, 2017. The last correspondence between parties was on March 2, 2017 and the case was brought three days before the release of the alleged movie.
Justice GS Patel stated herein I am now making it clear once and for all that these attempts at snatching last-minute injunctions, unfairly prejudicing the other side, and putting other litigants to real hardship and not mere inconvenience, let alone putting Courts and their infrastructure under pressure, will not be tolerated. Our courts are not meant for these frivolities. Thus, ruling against the plaintiffs, the court imposed a fine of INR 5 lakhs on the plaintiff for filing frivolous complaint and wasting the time of the court.
In the instant case, the Judge came down heavily on the plaintiffs and stated that - Parties in IPR matters cannot expect Courts to push aside all other cases. This happens repeatedly, whether it is movie releases or otherwise. It must stop. It is unfair to courts and it is unfair to other litigants waiting their turn. Where a plaintiff has had enough notice and yet chooses to move at the eleventh hour – and makes no allowance at all for any adjustment that may be required – the plaintiff must be prepared to face the consequences.
Conclusion
The Court’s insistence on imposition of costs on vexatious last-minute filing is a move to preserve the time of the Court and that of the other litigants as opposed to those litigants who had sufficient or enough notice and yet approached the Court at the 11th hour with frivolous claims, expecting indulgence of the Court at the very last moment.
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