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In the High Court of Judicature at Bombay Ordinary Original Civil Jurisdiction in Its Commercial Division

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In the High Court of Judicature at Bombay Ordinary Original Civil Jurisdiction in Its Commercial Division 904.10.comipl.147.2020.doc dik IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION IN ITS COMMERCIAL DIVISION INTERIM APPLICATION NO.1 OF 2020 AND LEAVE PETITION NO.56 OF 2020 IN COMMERCIAL IP SUIT (L) NO.147 OF 2020 Endemol Shine Nederland Producties B.V. & Ors....Applicants(Org. Plaintiffs) In the matter between: Endemol Shine Nederland Producties B.V. & Ors. …Plaintiffs Versus Andaman Xtasea Events Private Limited & Ors. …Defendants ---------------- Mr.Hiren Kamod, Advocate along with Mr.Vaibhav Keni, Ms. Doyel Sengupta Mattoo and Ms. Neha Iyer, Advocates i/b Legasis Partners, for the Applicants/Plaintiffs Mr. Lalit Sharma, representative of the Plaintiffs’ None for the Defendants ..... CORAM : B. P. COLABAWALLA, J. 21 FEBRUARY, 2020. P.C. : 1. Mr. Kamod, learned Advocate for the Plaintiffs submits that the papers and proceedings in the present matter have been duly served upon Defendant Nos.1 to 3 on 10th February, 2020 and Defendant No.4 on 8th February, 2020. An affdavit of service dated Pg 1 of 18 ::: Uploaded on - 24/02/2020 ::: Downloaded on - 24/02/2020 14:30:48 ::: 904.10.comipl.147.2020.doc 14th February, 2020 evidencing service of documents upon the Defendants was tendered before this Court on 14th February, 2020 and the same was taken on record. As per the order passed on 14th February, 2020, the Plaintiffs have given one more notice of this application to the Defendants vide emails dated 18th February, 2020. A copy of the said order dated 14th February, 2020 is also served upon the Defendants through email. The said emails are tendered before the Court and the same are taken on record and and marked “X” (colly) for identifcation. Despite service, no one is present on behalf of the Defendants. 2 This is an action for infringement of the Plaintiffs’ registered trademarks, copyrights combined with a cause of action for passing off. The Petition fled by the Plaintiffs seeking leave under Clause XIV of the Letters Patent (Bombay) to combine the cause of passing off with the cause of action of infringement of trademarks and copyrights is allowed. The Plaintiffs are presently only pressing for ad-interim reliefs in terms of prayer clause (a), (b), (d), (e) and (f) of the Interim Application and are not pressing for the remaining reliefs at this stage. 3 It is stated that the Plaintiffs form part of the Endemol Pg 2 of 18 ::: Uploaded on - 24/02/2020 ::: Downloaded on - 24/02/2020 14:30:48 ::: 904.10.comipl.147.2020.doc Shine Group, which is one of the biggest global content creators, producers and distributors with a portfolio of international hits including Big Brother, Black Mirror, Broadchurch, Bron/Broen, Deal or No Deal and many more. It is stated that the Endemol Shine Group is the world’s largest independent producer of television and digital content with more than 120 production companies in 20 countries. It is stated that Endemol Shine Group works together with more than 280 channels, digital platforms and licensees worldwide. It is stated that every year, the Endemol Shine Group produces more than 61,000 hours of content in 50 different languages spread across the genres of entertainment, reality, game shows, comedy, drama, soap, sports, informative, animation and feature flms. 4 It is stated that one of the most popular reality shows of Plaintiff No.1 is ‘Big Brother’ which was created by it in the year 1998 in its home country i.e. Netherlands and launched in 1999 where it was frst made available to the public. It is stated that the said show had a unique, never seen before format where the contestants had to live in an isolated house, were flmed 24/7 and try to avoid eviction on the basis of public voting, competing for a cash prize to be awarded to the fnal survivor. It is stated that the said show was an instant hit among the masses and generated extremely high TRPs. It is stated Pg 3 of 18 ::: Uploaded on - 24/02/2020 ::: Downloaded on - 24/02/2020 14:30:48 ::: 904.10.comipl.147.2020.doc that the said show became so popular that Plaintiff No.1 produced several seasons of ‘Big Brother’ in Netherlands. It is stated that Plaintiff No.1 is the frst owner of the copyright subsisting in the format / content production bible of the ‘Big Brother’ which qualifes as the Original Literary Work under the Copyright Act, 1957. It is stated that the TV show Big Brother became so popular that Plaintiff No.1 through Plaintiff No. 2 licensed the format ‘Big Brother’ to various entities across the world to make their own cinematograph flm adaptions of the Production Bible of ‘Big Brother’. It is stated that till date, adaptations / TV shows based on Plaintiff No.1’s said Production Bible have been telecast in approximately 43 countries including Australia, Albania, Angola, Belgium, Brazil, Bulgaria, Canada, Colombia, China, Croatia, Czech Republic, Denmark, Ecuador, Finland, France, Germany, Greece, Cyprus, Hungary, Indonesia, Israel, Italy, Lithuania, Mexico, Netherlands, Norway, Nigeria, Peru, Panama, Philippines, Portugal, Poland, Romania, Russia, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Thailand, Turkey, Ukraine, US, UK among others. It is stated that ‘Big Brother’ was and still is one of the most widely watched shows across the world. It is stated that the license granted by Plaintiff No.1 through No.2 to its affliates around the world to produce and broadcast the aforesaid adaptations of Big Brother has been granted Pg 4 of 18 ::: Uploaded on - 24/02/2020 ::: Downloaded on - 24/02/2020 14:30:48 ::: 904.10.comipl.147.2020.doc as a limited right and the ownership of the copyright in the said Production Bible has always vested with Plaintiff No.1. 5 It is stated that as per the practice, Plaintiff No.2 licenses the right to produce a local language version of the Format to a Broadcaster and the Broadcaster in turn appoints Plaintiff No.3 for production of that language version of the format. It is stated that while Plaintiff No.3’s ‘Bigg Boss’ is based on the said Production Bible of the show “Big Brother”, Plaintiff No.3 has made minor variations to its TV show in view of the Indian market. It is stated that Plaintiff No.3 invites celebrities as contestants for its show ‘Bigg Boss’ and uses the exact same gameplay as used in “Big Brother”. It is stated that Plaintiff No.3 launched the frst season of its TV show ‘Bigg Boss’ in November 2006 and the said TV show was an instant hit and generated extremely high TRPs. It is stated that since the format of the show was unique, one of its kind and never seen before on Indian television, the viewership of the show increased continuously. It is stated that due to the high demand and popularity of ‘Bigg Boss’ in India, till date, Plaintiff No.3 has produced twelve seasons of the TV show in India. It is stated that initially, ‘Bigg Boss’ was a show that aired in Hindi language. However, the same acquired popularity throughout India, due to which, the Plaintiffs decided to produce and Pg 5 of 18 ::: Uploaded on - 24/02/2020 ::: Downloaded on - 24/02/2020 14:30:48 ::: 904.10.comipl.147.2020.doc broadcast it in regional languages also to specifcally cater to regional viewers, particularly in South India. It is stated that Plaintiff No.3 has launched Bigg Boss in Marathi, Telegu, Kannada, Tamil, Malayalam and Bengali languages, with each show enjoying massive TRP’s that is refective of the wide range of viewership enjoyed by the said shows. 6 It is stated that Plaintiff No.3 is the registered proprietor of the word mark “BIGG BOSS” bearing registration No.3107475 in Class 41 in respect of education; providing of training; entertainment; sporting and cultural activities, television entertainment services, television show production, television studio services, production and organizing of entertainment and recreational events. Printouts from the offcial website of the Trade Marks Registry of the online status and registration certifcate of Plaintiff No.3’s said trade mark is at Exhibit “B” to the plaint. It is stated that Plaintiff No.1 is the registered proprietor of the word mark and label mark BIG BROTHER. Printouts from the offcial website of the Trade Marks Registry of the online status and registration certifcates of Plaintiff No.1’s said trade mark registrations bearing No.1267730 and 1267732 both in Class 41 are at Exhibit “C” & “D” to the plaint. It is 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 Pg 6 of 18 ::: Uploaded on - 24/02/2020 ::: Downloaded on - 24/02/2020 14:30:48 ::: 904.10.comipl.147.2020.doc an eye which is symbolic of the character Bigg Boss on the show. It is stated that Plaintiff No.3’s ‘Bigg Boss’ TV show prominently uses a unique device of eye in each season. The device of eye is found not only in respect of Plaintiff No.3’s ‘Bigg Boss’ TV show, but is also featured in some form or other in Plaintiff No.1 and Plaintiff No.2’s ‘Big Brother’ TV shows around the world. It is stated that the Device of Eye has always been one of the leading, essential and prominent features of all Bigg Boss formative marks and has come to be exclusively associated / identifed with Plaintiff No.3’s show.
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