Distinctive elements in ad campaigns can be protected under IP laws
The Delhi High Court has ruled that distinctive elements in advertising campaigns can be protected by the courts under intellectual property law. The court was ruling in a dispute between Bright Lifecare Pvt Ltd and Vini Cosmetics Pvt Ltd.
MuscleBlaze Brand, a health supplement, ran an ad campaign in 2018 titled ‘Ziddi Hoon Main’! Its creatives used words like ‘Zidd’ and ‘Ziddi’ to portray an image of a person who doesn't give up easily.
MusclBlaze had gone to court against Vini Cosmetics Pvt Ltd, makers of deodorant brands like Fogg. The company’s another brand adopted the tagline ‘Ziddi Perfume’ saying that the ads were conceptually and visually similar to that of MusclBlaze.
Delhi High Court directed Vini to pull down the two commercials. It, however, clarified that there is no restraint on Vini from using the words or expression ‘Zidd’ or ‘Ziddi’ and they are free to modify their ads to remove the objectionable frames and then re-launch them.
Justice Prathiba M Singh ruled that the threshold for establishing distinctiveness would be quite high and unless and until there is great distinctiveness and likelihood of confusion or deception, the court would not grant injunction against a rival campaign because it may “stultify creativity.”
“Thus, in law, an advertising campaign, if it signifies the source and has become distinctive of the Plaintiff, can be granted protection,” said the court.
“The overall theme of dark setting, persons working out, use of ‘ZIDDI’ and ‘ZIDD’ and colour of yellow and black is present in the Plaintiff’s and Defendant No.1’s campaign… There is no doubt that no monopoly can be granted over the concept and idea of ‘ZIDD’ and ‘ZIDDI’. However, the portrayal of the same by picking almost identical elements, cannot be completely ignored by the Court,” the single-judge court stated.
“There can also be no monopoly or exclusivity on showing a muscular person working out in a gym but the expression of the idea has to be different. Again, the portrayal of a person using a punching bag can also not be monopolized but the expression has to be different. In the impugned commercials, in the opinion of the Court, the expression is a colourable imitation of the Plaintiff’s advertising commercial,” the court said.