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TMI Blog2011 (1) TMI 1587X X X X Extracts X X X X X X X X Extracts X X X X ..... within India was equivalent to 2.1% of India's Gross Domestic Products at Current market price, and the exports per USD 6.3 billion, equivalent to 3.4% of India's exports. The Plaintiff has over 3.5 million shareholders and its assets are valued at US$ 51.7 billion. It is contended that TATA companies have laid the foundation in the industrial core sectors, pioneering the iron & steel, textiles, power, chemicals, hotels and automobile industries in India, and that the TATA brand encompasses diverse businesses and services such as computers and computer software, electronics, telecommunications, financial services, mutual funds, tea and publishing. It is further stated that the TATA group was ranked 13th in the list of World's 50 Most Innovative Companies by Business Week, for the year 2009. Further, the TATA brand has also been ranked 65th among top 100 brands worldwide, listed by Brand Finance, (an independent company focused on the management and valuation of brands) Global 500 Report March 2010. Further, for the year 2009, the Plaintiff was ranked as the world's 11th most reputed company according to a study complied by United States based Reputation Institute. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "T within a circle" device; other trademarks with the TATA logo or the "T" device under various classes. Further the Plaintiff also is copyright owner to various pictorial representations of the "T within a circle device" copies of certificate for use in legal proceedings and copies of certified true copies of trademark registration certificates etc., of the trademarks owned by the Plaintiff company are produced along with the suit. The long and extensive use of the Plaintiff's trademark TATA has resulted in its unparalleled reputation and goodwill and it has therefore acquired the status of a "well-known' trademark. The Plaintiff alleges that it has successfully and vigorously enforced its trademark rights in the mark TATA in respect of various goods and services. 6. The Dhamra Port Company Limited (DPCL) is a 50 - 50 joint venture of Larsen and Toubro limited and TATA Steel limited (a publicly listed company of which the Plaintiff is the promoter). DPCL was awarded a concession by Government of Orissa to build and operate a port north of the mouth of river Dhamra in Bhadrak district on BOOST (Build, Own, Operate, Share and Transfer) bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the yellow turtles eat as many little white dots as possible without running into Ratty (presumably after Ratan Tata, chairman of the Tata Group), matty, Natty or Tinku Further, by the impugned game "TURTLE v. TATA" the Defendants are spreading the following defamatory remarks and statements about the Plaintiffs: ... while dodging the TATA demons if you eat a power pill, you will be gifted with super turtle powers to vanquish the demons of development that are threatening your home Copies of articles/documents and printouts pertaining to the Defendant wherein such derogatory remarks against the Plaintiff has been produced along with the suit. 8. The Plaintiff submits the impugned game and the Defendant's use of the TATA mark and T device within a circle, amounts to defamation, with the ulterior motive of damaging its reputation. This is also motivated at prejudicing the Plaintiff's immense goodwill, as well as the reputation of Mr. Ratan Tata, the Chairman of Tata Steel. The Plaintiff also alleges that this is aimed (by the Defendants) to create a false impression with members of the general public, about its activities. It is also urged, besides that the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004 Bom 143. 11. The Plaintiff's senior counsel submits that the Defendant has intentionally and calculatedly targeted Tata Sons alone for the defamatory statements. It is submitted in this regard that Tata Sons is only 50% shareholder/stake holder in the joint venture for setting up of the port and which is for the benefit of the State of Orissa. Therefore, to target the Tata's by drawing the attention of the public to its trademark and the logo is not only malicious but untrue as the impression sought to be conveyed is that the entire project has been conceived, established and is owned by the Tata's. It is submitted that portraying the Plaintiff as a demon in the game with pointed use of the "T" device is malicious, as it is intended to convey to the world at large the so called heartlessness in setting up the Dhamra Project. Had the intention of the Defendant really been to express dissent, and if indeed they wanted to speak in hyperboles there was other legitimate means of doing so. 12. The Plaintiff further argued that regardless of whether compensation can be granted at the final decree stage, the Court is not powerless when faced with the question o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Parliament, has used the expression"; loot of public money" with regard to defaulters, and hence, the Respondents are also entitled to use the same expression, cannot be accepted at all. It may be noted here that the statement made by the Hon'ble Finance Minister was within the four walls of the Parliament and hence, the same was privileged. The Respondents, however, do not have any such privilege to make such a type of statement by using such expressions. 52. Even the tenor of use of such expressions in the said Press Note quoted hereinabove, which has been complained of do not indicate that the same has been made bona fide and in the larger public interest. If the Respondents were keen about making the statement in large public interest, there were means and ways by which the same could have been communicated, but not by using of such highly damaging expression. The Respondents also have not taken the reasonable precaution of ascertaining the truth before publication. XXX XXX XXX 55. As pointed out hereinabove, the learned Judge of the Bombay City Civil Court has ignored the settled principle of law in India, mis-applied the principle of law in the sense, me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lance of convenience and the likelihood of irreparable prejudice to the Plaintiff who is the subject of defamation. 15. The Plaintiff lastly argued that the use of T device and the Tata mark, although not in the course of trade, will amount to trademark infringement of dilution or tarnishment if one applies the appropriate tests evolved by the United States Courts. The Plaintiff relied upon Section 29(4) of the Trade Marks Act, 1999 and submitted that "use" of trademark is not confined merely to the Defendant engaging itself in a trade or commercial activity, but other forms of speech or representation, which would tarnish the Plaintiff's mark. In this regard the Plaintiff relies upon the judgment reported as The Coca-Cola Company v. Gemini Rising Inc., 346 F.Supp 1183 (1972) as well as Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC; 507 F.3d 252 (4th Cir 2007). 16. The Greenpeace India Society (the second Defendant, hereafter called "Greenpeace India") is an independent global campaigning organization that acts to change attitudes and behavior, to protect and conserve the environment and to promote peace; it was established on 28th of June, 2004, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratory Species Convention and Convention on International Trade on Endangered Species of Wild Flora and Fauna (CITES). It is urged that India is a signatory to both these conventions and that in 1997, the nesting beaches and habitats were granted legal protection as part of the Gahirmatha Marine Sanctuary. The close proximity of the port site poses a clear and significant risk to the Gahirmatha Marine Sanctuary and the surrounding turtle nesting and breeding habitats. There is a substantial risk to the survival and thriving of the endangered Olive Ridley turtles due to the damage caused on account of dredging, light and chemical pollution, oil or chemical spills, continuous shipping traffic, danger of accident and secondary development on account of the port. 18. Greenpeace India urges that in view of significant threats to nearby protected areas, the endangered Olive Ridley Sea Turtles, the marine environment, and coastal communities, it has been highlighting the concerns through peaceful and non-violent means. It submits to having been working towards protecting one of the world's largest sea turtle mass nesting sites for the last five years. Greenpeace India claims being sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... patory campaigning. As a part of such campaigning, in relation to the project, the Defendant launched a Pac-Man inspired video Game TURTLES v. TATA (hereinafter referred to as "the Game"), on the 30th anniversary of the game, to protest and garner public opinion against the project. The online game is designed as creative, peaceful and nonconfrontational platform to draw attention to the threat that the Olive Ridley Sea Turtles are facing due to the Project. It is submitted that the message conveyed by the game is that the endangered Olive Ridley Turtle is in danger of losing its habitat at Gahiramatha because of the construction and setting up of the Port. The on-line game has been created to raise awareness about the danger that the project poses to local marine life in the region. 20. Greenpeace India alleges that a reading of the suit averments reveals that it is intended to be for alleged defamation rather than infringement of trademarks, which has also been joined with a view to address the deficiencies in the Plaintiff's claim for alleged defamation. It is submitted that the Plaintiff itself has candidly stated in the plaint that the entities defamed are Dhamr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f or any person associated with it, and intends to focus public attention to the potential environmental dangers posed by the project to the ecology of the area in question. The game in question is merely depicting the challenges that Olive Ridley turtles would have overcome in order to survive in spite of the Project. 21. Greenpeace India submits that the reference to the word "Demons" is only with a view to emphasize and drive home the point that development through the project in question, tantamounts to a "demon" which threatens the existence and survival of the Olive Ridley. The juxtaposition of the word "demons" with TATA and with reference to the project, is merely hyperbole. The word "demons" have been used as an overtly emphatic expression primarily with the purpose of making a strong impact impression without intending it to be taken literally. When the word and indeed the entire game is viewed in this light, it can hardly be said to be defamatory. The game succinctly and creatively enables the registering of protest and concerns in relation to the future of the Olive Ridley turtles in the region and the juxtaposition of the word & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s nothing in their conduct which demands restriction on it. 22. Greenpeace India relies on the judgment of the Supreme Court reported as S. Rangarajan v. P. Jagajivan Ram 1989 (2) SCC 574 to submit that terms and expressions, in a defamation case, are not to be seen in isolation of their context, and the Court must allow a certain latitude to the author or maker who is exercising his right to free speech or fair criticisms in regard to matters of public concern. Counsel urged that the importance of free speech in a democracy, in matters of moment and issues that concern the people, cannot be undermined, and was recognized long ago in England, in Bonnard v. Perryman [1891] 2 Ch 269, where it was held that exceptional caution has to be exercised by the Court while exercising jurisdiction to interfere by way of injunction. Counsel emphasized that in the said decision, the Court highlighted that- ...The right of free speech is one which it is for the public interest that individuals should possess, and,.... Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Greenpeace International) has a non-exclusive agreement permitting the latter to use the term "Greenpeace". Greenpeace International also submits that it hosts a separate website. It is argued on behalf of Greenpeace International that its arrangements with Greenpeace India are such that the latter takes independent decisions and is autonomous from the International organisation. Greenpeace International also urges that the objectionable game and website has not been published by it and not it be held responsible for the actions and publications of Greenpeace India, which are the subject matter of the present suit. 26. As is apparent from the above discussion, this case concerns the creation of an online game by Green Peace India called "Turtle v. Tata'. The principal objective of the game, as argued by Greenpeace India, is to bring to the public's notice the alleged destruction of the Olive Ridley Turtles' nesting habitat by the construction of the Dharma Port. This game has been fashioned in such a way, that the TATA logos essentially play the role of an antagonist. The turtle has to, in the game, strategically destroy the TATA logos. The Plaintiff al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Protection) Act 1972, and also that the construction of the Dhamra Port has been successful as a result of the illegal acquisition of land under the Forest (Conservatory) Act 1980. The learned Counsel for the Defendant has also advanced an argument under the legal maxim of locus standi. The essence of the argument is that the House of TATA and the different TATA companies (including TATA Steel) are separate entities and thus have no locus standi for an alleged case of defamation and violation of the TMA against TATA Steel. The Defendant further submits that the game, as well as use of the TATA logo and trademark do not amount to infringement, and are meant to be a parody. It is argued in this context that the use of the term "demon" is hyperbolic. 28. The English common law precedent on awarding interim injunctions in cases of defamation is set out by the case of Bonnard (supra). In Bonnard it was decided that an interim injunction should not be awarded unless a defence of justification by the Defendant was certain to fail at trial level. The Court's observations, widely applied in subsequent judgments are as follows: ...[The subject-matter of an action for defama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e granted against a Defendant in a libel action if he intends to plead justification unless the Plaintiff can prove that the statement is untrue; (2) The Plaintiff had not shown that the Defendant's statement was untrue...the line of authority is long and weighty that interlocutory injunctions in these cases will not be granted unless the Plaintiff shows that the defence of justification will not succeed.... In Herbage v. Pressdram Ltd. [1984] 1 WLR 1160 Griffiths LJ restated the effect of the rule and then said (at p 1162H): These principles have evolved because of the value the court has placed on freedom of speech and I think also on the freedom of the press, when balancing it against the reputation of a single individual who, if wrong, can be compensated in damages. He refused to water the principles down. After summarizing an argument by counsel, which suggested that the combined effect of the Rehabilitation of Offenders Act 1974 and the decision of the House of Lords in American Cyanamid Co. v. Ethicon Ltd. [1975] AC 396 justified a radical departure from the rule, he went on to say (at p 1163B): If the court were to accept this argument, the practical effect woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reasoning it follows that the Court will invariably not grant an interim injunction to restrain the publication of defamatory material as it would be unreasonable to fetter the freedom of speech before the full trial takes place, where each of the parties can argue in detail with the help of additional evidence. Similarly in this matter, it is incumbent upon this Court to decide whether it would be reasonable to fetter the reasonable criticism, comment, and parody directed at the Plaintiff, which to a large extent is protected by the Constitutional guarantee to free speech, to all the citizens of India. This point of view was also strengthened by a recent challenge to the old common law rule of Bonnard in the case of Greene v. Associated Newspapers Limited, 2005 (1) All.ER. 30, where it was decided that if it is a known fact that the true validity of the defamation claims will only be tested at trial level then it would only be appropriate for the Court not to award an interim injunction to the Plaintiffs as it would otherwise put an unreasonable burden on the concept of free speech. After an elaborate survey of the law on the issue, it was held that: This survey of the case la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential information. 31. However in the current suit, as the Plaintiff has submitted that there is no recognized method of ascertaining the amount for damages for defamation (i.e. Rs 10,000,000). Therefore it is submitted that the amount of damages asked for by the Plaintiff to a large extent is difficult to establish and award. The other point proffered by the Lord Denning in the cases of Woodward and Frasier (and also in Greene, subsequently) was that it would be unjust to fetter the freedom of expression, when actually a full trial had not taken place, and that if during trial it is proved that the Defendant had defamed the Plaintiff, then should they be liable to pay the damages. Frasier also stated that a successful claim for a permanent injunction at a later stage would obviously negate the amount of defamation created by the Defendants at the pre-trial level. The ratio for not granting an injunction at an interim level is essentially because it would be too onerous on the Defendant to either stop publication of the material or that it would be an unjust restriction on the freedom of expression. 32. This Court is also bound to follow the Bonnard principle, further, for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntervention in a pending case, before the Supreme Court. They also rely on a report by the Central Empowered Committee. 34. While the Plaintiff's invocation of the Court's power under Order XXXIX, Rule 2 cannot be faulted, the sequitor to it, that it is entitled to injunction on account of the Defendant's false or untrue statements, and therefore their mala fides is not as easy to deduce. The fact that it is not Greenpeace India alone which is voicing concerns about the alleged or potential destruction about the Olive Ridley turtles' habitat and nesting grounds, is clear because environmental experts appear to have written about it, and sought to intervene in Supreme Court proceedings. It is quite possible that the concerns are genuinely held beliefs, even backed by materials. That the project received clearances and approvals, only discloses the truth of that fact, i.e. that it was granted legal sanction and permission. Yet, it is open to all - especially more in a plural democracy such as in India, to hold views, based on whatever materials the person concerned is relying upon - that the project indeed is ecologically disastrous - potentially, notwithstanding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge, and Merco Joint Venture was formed to provide a solution to this dilemma. In 1992, the city contracted with Merco to dispose of up to thirty percent of the city's sewer sludge. Merco originally planned to ship the sludge to Oklahoma, and dispose of it by spreading it on grassland. However, Merco could not comply with Oklahoma environmental regulations in time to accommodate its contract. Merco promptly chose Sierra Blanca, a town in West Texas, as the new destination for the sludge. Merco obtained state permits to spread sludge in Texas in less than a month. Merco purchased a ranch in Sierra Blanca as a disposal site for the sludge shipments, which began arriving in July 1992. When sludge arrived from New York, Merco applied it to the ground at the ranch as a fertilizer. A TV feature was broadcast on this, with interviews and commentary by an Environment Protection Agency official. Merco sued the official and the TV channel for defamation. The Trial Court granted relief; the Appellate (Circuit) Court reversed the judgment. It was held (by the Circuit Court) that the use of expressions such as "poison" and Merco's activities were "an illegal haul and dump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied merely through a showing of ill will or 'malice' in the ordinary sense of the term." Harte-Hanks, 491 U.S. at 666, 109 S.Ct. at 2685. Culpability on the part of the Defendant is essential. "There must be sufficient evidence to permit the conclusion that the Defendant in fact entertained serious doubts as to the truth of his publication." St. Amant, 390 U.S. at 731, 88 S.Ct. at 1325. That evidence is lacking here. Earlier, the US Supreme Court, in Milkovich v. Lorain Journal Co. 497 U.S. 1 (1990), ruled that existing law adequately protected freedom of expression "without the creation of an artificial dichotomy between "opinion' and fact." In particular, it pointed to precedent providing "that a statement on matters of public concern must be provable as false before there can be liability under state defamation law".... It was further held that: a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection." Id. at 20. The Court further observed that ""rhetorical hyperbole'" is protected by doctrine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion without unduly overriding such free wheeling public discourse? Lyrissa Barnett Lidsky discusses this conundrum in her article, "Silencing John Doe: Defamation and Discourse in Cyberspace" (2000) 49 Duke L.J. 855 at pp. 862-865: Internet communications lack this formal distance. Because communication can occur almost instantaneously, participants in online discussions place a premium on speed. Indeed, in many fora, speed takes precedence over all other values, including not just accuracy but even grammar, spelling, and punctuation. Hyperbole and exaggeration are common, and "venting" is at least as common as careful and considered argumentation. The fact that many Internet speakers employ online pseudonyms tends to heighten this sense that "anything goes," and some commentators have likened cyberspace to a frontier society free from the conventions and constraints that limit discourse in the real world. While this view is undoubtedly overstated, certainly the immediacy and informality of Internet communications may be central to its widespread appeal. Although Internet communications may have the ephemeral qualities of gossip with regard to acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iously led her to cease her analysis of the Internet factor at that point. She failed to take into account the distinctive capacity of the Internet to cause instantaneous, and irreparable, damage to the business reputation of an individual or corporation by reason of its interactive and globally all-pervasive nature and the characteristics of Internet communications outlined in paragraphs 28-33 above. [45] Had the motions judge taken these characteristics of the Internet more fully into account, she might well have recognized Barrick's exposure to substantial damages to its reputation by reason of the medium through which the Lopehandia message was conveyed.... Does internet use, for posting or publishing libellous material, call for a different standard-especially in considering a Plaintiff's claim for temporary injunction, is the question this Court has to address in the light of the Plaintiff's submission. Now, speech (or expression) can be in any form - printed, spoken, articulated through drama, poetry, mime, parody, or the like. The speaker can choose any medium he wishes to subject to its availability. Thus, material can be published in books, newspapers, maga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is sought in this case. The Court there ruled, pertinently, that Internet publication of a libel, because of the libel's wider reach and viewership, has to be considered as an additional factor, while assessing damages. However, the judgment is not an authority to say that internet libels or cyber libels call for application of a different injunction standard, other than the Bonnard rule. The Court does not discern any such discussion; adopting such an argument would result in the anomaly of discriminating between one medium of expression and another, in assessing whether to grant temporary injunction restraining publication - which is neither salutary, or as this Court suspects, Constitutionally sanctioned. In law, publication of a libel even to one is sufficient to impel a suit for damages; the wider reach of the publication or its greater accessibility is perhaps a ground for assessing the degree of damages. Formulating and adopting any other approach would result in disturbing the balance between free speech and the interest of any individual or corporate body in restraining another from discussing matters of concern, so finely woven in the texture of the Bonnard ruling. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is wrong and misleading. Unless he can do that, then his rival, both for his own commercial interests and in the interests of the public, ought to be free to say that which he honestly believes. 49. Traders will have nothing to fear if they have sure foundations for claims they make about their products. Such traders will be able to obtain prior restraint orders because they will be able to cross the threshold. Traders who make claims for their products which they cannot readily and firmly justify will have to live with the risk that their rivals can honestly and reasonably call those claims into question pending a final resolution as to whether the claims are in fact good. Applying this reasoning, in the current case the Defendant's use of the trademark was at a much lower degree of parody and ridicule, as the Defendants are not involved in any kind of similar entrepreneurial/ business venture as the Plaintiff is involved. Therefore the Court should be aware of the fact that the general tolerance level of another body using (Defendants) a registered trademark to put forward its cause is at a high threshold.... 41. The Defendant had submitted, on the strength of the ruling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and attributed undue weight to the literal meaning of the words used. At the same time it gave far too little regard to the uniquely expressive weight of the parodic form used. The result was inappropriately to allow what were tenuous property interests to outweigh substantial expression rights. 75. At the heart of this matter lies the legal dilemma posed by the fact that Laugh It Off utilised the SAB brand, not adventitiously, but deliberately and precisely in order to challenge SAB's use of branding. It went further. It employed the enemy's brand to denounce the power of branding in general, and to confront the employment of trademark law, in our country as elsewhere, to suppress free speech. It was a calculatedly risky activity, with the sense of irreverence and provocation being intrinsic to the enterprise. If parody does not prickle it does not work. The issue before us, however, is not whether it rubs us up the wrong way or whether Laugh It Off's provocations were brave or foolhardy, funny or silly. The question we have to consider is whether they were legally and constitutionally permissible. I believe they were eminently so, and give my reasons. The paradox ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, and finally others may have duplicitous commercial aspirations. Rutz states that "[o]ften laughter is provoked not at the expense of the original work and its author, but at the dislocation itself. The public may find pleasure in recognising the parody's object; on the other hand, reactions may be anger or shock, depending on the context in which the parody is set. 79. The closer the object of the parody is to the parody itself, the more intense will the paradox be. 'Target' parodies seek to comment upon the text itself or its creator or owner, while 'weapon' parodies involve the use of that text to comment on something quite different. Jurists such as Posner and Kennedy J have suggested that weapon parodies involving the hijacking of a well-known image to attack something entirely unrelated, should not enjoy free speech protection. Another view is that whether the parody of a trademark targets the mark directly or uses it to hit at another target should not be decisive in itself, but merely one of the factors to enter the scales when free speech and property rights are balanced against each other. In either event some degree of paradox will exist to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtists and advertisers have used the image or representation of cultural icons to comment on society, criticize the symbol, or sell merchandise. In our pop culture where salesmanship must be entertaining and entertainment must sell, the line between commercial and noncommercial speech has disappeared. 86. Of more significance is whether the activity is primarily communicative in character or primarily commercial. Thus, some degree of commerce should not in itself exclude the activity from free speech protection. Nor, however, should an element of social criticism on its own save an inherently commercial activity from a charge of unfairly causing detriment. 87. Similarly, the fact that the message could have been conveyed by means other than parody should not be decisive or even significant, again depending on the facts. If this were not so there would be no scope at all for trademark parody, because the message could always be conveyed more directly, if less convincingly, by production of a leaflet or else a letter to the editor. In our consumerist society where branding occupies a prominent space in public culture, one does not have to be a 'cultural jammer' to recogni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jokes are funny, and whose parodies succeed. 89. I have mentioned factors which I believe will be relevant to the balancing exercise. The list is by no means exhaustive. Nor should they be seen as a series of discrete hoops through which the litigants must pass in order to succeed. Rather, they are illustrations of the kind of considerations to be evaluated in a fact-sensitive and contextual manner and against the backdrop of the values of an open and democratic society.... In Louis Vuitton Malletier S.A. (supra) the US Circuit Court had to deal with Louis Vuitton's claim that its marks, used for luxury products and accessories, were infringed by dilution, when the Defendant's Chewy Vuitton used a similar mark, with similar combination and similar logo, but in respect of dog toys. The Defendant had argued that its marks were a parody of the Plaintiff's famous marks, and therefore, did not constitute infringement. After discussing the rival submissions, and the statute, i.e. the Trademark Dilution Act, the Court held that: The TDRA, however, does not require a court to ignore the existence of a parody that is used as a trademark, and it does not preclude a court fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... famous mark has proved its claim that the Defendant's use of a parody mark is likely to impair the distinctiveness of the famous mark." In Esso, Greenpeace had been sued for use of the Plaintiff's mark in its (the Defendant's) website. The European Court rejected the claim for trademark infringement, and declined injunction, holding that use of ESSO and E$$O on the Greenpeace website, in the context of that organization's criticism of Esso's environmental policies, was a denominative use of is (Esso's) mark that did not infringe it. 42. The above analysis would show that the use of a trademark, as the object of a critical comment, or even attack, does not necessarily result in infringement. Sometimes the same mark may be used, as in Esso; sometimes it may be a parody (like in Laugh It Off and Louis Vuitton). If the user's intention is to focus on some activity of the trademark owners, and is "denominative", drawing attention of the reader or viewer to the activity, such use can prima facie constitute "due cause" under Section 29(4), which would disentitle the Plaintiff to a temporary injunction, as in this case. The use of TATA ..... X X X X Extracts X X X X X X X X Extracts X X X X
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