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TMI Blog2001 (7) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... r is merely a graphic without any commercial value or is a branded graphic with commercial value. The facts germane for the aforesaid contentious issue lie in moderate compass. 3. The Board of Control for Cricket in India (hereinafter referred to as BCCI) possesses the exclusive rights of cricketing events. With the growing popularity of and viewership for cricketing events the Board entered into an agreement with the Prasar Bharti, a Broadcasting Corporation of India, on 25-9-1999 whereby the respondent was vested with the rights to broadcast cricket matches over all modes of communication including television, radio and internet. In pursuance of this agreement, Prasar Bharti invited open tenders from various parties for marketing of air-time during matches including one day internationals, test matches and in any other cricketing events under the aegis of BCCI, to be telecast on DDI and DD Sports Channels. 4. By virtue of clauses 1.1, 2.1. of Agreement the petitioner, namely, Buddha Films (P.) Ltd. (Buddha), has been given the exclusive domestic rights to sell or market the air-time in the territory of India in respect of cricketing events and all commercials which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely prohibited from permitting any kind of commercial during the telecast of all cricketing events throughout the terms of the contract either by itself or through any other company. 5. Dispute arose when during the India-South Africa series in 2000, Prasar Bharti started superimposing the commercial www.dd.sports.com. Im mediately the petitioner shot off a letter to the respondent objecting to the superimposition of the Logo being in violation of the Agreement. In return the petitioner was told that it has no right to object as the same does not form part of air-time sales for India. 6. The next series was India-Zimbabwe series. It was to take place in November 2000. Prasar Bharti sought permission from the petitioner Buddha to permit some commercial to be superimposed as it knew that it was prohibited to do so as per the terms and conditions of the contract. Some meetings took place between the officials of Prasar Bharti and representatives of Buddha. However, the letter addressed by Prasar Bharti under the garb of seeking such permission was later withdrawn. But to utter shock of Buddha during direct telecast of match of India- Zimbabwe on 28-11-2000 the website www.d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 addressed by Prasar Bharti to TWI/Stracon culminating into the agreement dated 19-2-2000 whereby TWI/Stracon India was granted overseas marketing rights/exclusive international rights on a non-exclusive basis. These rights were given subject to certain conditions, some of which are as under : ( ii )Prasar Bharti has exclusive and complete rights for licensing the internet rights to an unlimited number of users. ( iii )The licencees of the internet rights shall be directed to approach Stracon for getting multimedia for use on the internet on such fees, as may be prescribed by Stracon. These licences shall not be denied use of multimedia, which has since been licenced to Stracon as part of the Global Marketing arrangement. ( iv )The additional revenue generated through sub-licencing of multimedia rights to internet licencees/sub-licencees shall be shared between Prasar Bharti and Stracon/TWI in the ratio of 50:50 (net). 11. The above arrangements were besides the official website which was to be developed and operated by TWI/Stracon for Prasar Bharti, without any financial or other liability to Prasar Bharti. This website was also to contain Doordarshan Logo on Home Pag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter as in para ( iv ), it was agreed that the additional revenue generated through sub- licencing of multimedia rights to internet licencees/sub-licencees shall be shared between Prasar Bharti and Stracon/TWI in the ratio of 50:50 (net). 17. As against this, the main thrust of contention of Mr. Kirit Rawal, the learned Additional Solicitor General appearing for respondent-Prasar Bharti was that the address of the official website does not come within the category of Logo of commercial or branded Graphic and since these supers were not made during the air-time reserved for Buddha, it did not cause any hindrance to the air-time of Buddha and as such the question of any loss of revenue to Buddha does not arise. According to Mr. Rawal, since the scroll is an address simpliciter of the official website of Prasar Bharti, it has no commercial value or consumerism. 18. Mr. Rawal vehemently urged that Clause 2.1 of the contract does not prohibit Prasar Bharti from putting the website address as website is neither a logo nor a commercial nor a branded graphic. As to the right of the petitioner under clause 7.1 of the contract, Mr. Rawal contended that under this clause specific t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewspaper or on a radio or television program, giving notice; notification; information or that any system or method of attracting public notice to an event to be attended, or the desirability of commercial products for sale; promotion; also, advertisements collectively. The word commercial has been defined in the same dictionary as of or belonging to trade or commerce; mercantile made or put up for the market; in radio and television, an advertisement. The word advertisement means a public notice, as in a newspaper or radio or television programme or giving notice or notification and includes the system of method of attracting public notice, etc. 26. The effect of this website address is that the viewer can access the said website on the internet and can in the context of operational technology see the match without having switched on the Doordarshan for which the petitioner has exclusive right of air-time and this means encroaching upon the right and competing at the cost of the petitioner in terms of licence and viewership. The argument that the Stracon has obtained multi-media rights from Doordarshan and these rights know no boundaries and such rights can be exploited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the balance of convenience and sufferance of irreparable loss, Mr. Rawal, the learned counsel for the respondent, thinks that the scale tilts more towards the respondent than the petitioner. He has referred to a letter dated 31-7-2000 wherein the petitioner had quantified the loss to be suffered by it to the tune of Rs. 1 crore and if the dispute is referred to the arbitrator, the petitioner can recover the said loss after adjusting towards the licence amount and, therefore, the question of its suffering irreparable loss or injury does not arise. 31. On the other hand, Mr. Sibal contends that if the DD is not restrained from displaying the website, it will result in irreversible damage. 32. Mr. Rawal, placed reliance on the judgment of the Division Bench of this Court delivered in an appeal [FAO(OS) 17/2001] filed by this very petitioner against the respondent challenging the order passed in the petition under section 9 of the Arbitration Act wherein the Division Bench declined to grant relief of the nature which, according to Mr. Rawal, the petitioner has sought in the instant petition. I am afraid the controversy involved in the above referred case was whether Prasar Bhar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake steps for arbitral proceedings contemplated under section 9 of the Arbitration Act, no interim injunction or relief under section 9 can be granted. 37. Incidently similar contention was raised by Mr. Rawal in the aforesaid FAO (OS) filed by the petitioner against the Prasar Bharti and reliance was placed upon Sundaram Finance Limited v. NEPC India Limited [1999] 2 SCC 479 wherein it was held that the initiation of arbitration proceedings would not be a pre-condition for filing petition under section 9. What is important is manifest intention to have the dispute referred to an Arbitral Tribunal. The Court further observed that a situation may so demand that a party may choose to apply under section 9 for an interim measure even before issuing a notice contemplated by section 21 of the Act. It was held that once such an application is made, the Court is to satisfy itself that there exists a valid arbitration agreement and the applicant intends to take the dispute to arbitration. Once it is so satisfied, the Court will have the jurisdiction to pass orders under section 9 giving such interim protection as the facts and circumstances warrant. 38. Even the plea that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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