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The yardstick for determining the infringement of trademark differs from case to case.

October 28, 2011
Warner Bros. Entertainment Inc. and Anr. Vs. Harinder Kohli and Ors.Decision by Delhi High Court The plaintiff (Warner Bros. Entertainment Inc) was an American producer of film and television entertainment, and had obtained rights for featuring film adaptations of Harry Potter Novel. Harry Potter is a well known novel, written by British Author Ms. J.K Rowling, which chronicles the adventures of the adolescent wizard Harry Potter. The defendant (Mr. Harinder Kohli and others) is the proprietor of Dream Town Productions Limited who is one of the co-producers of the film Hari Puttar. The movie Hari Puttar is a Hindi/Punjabi based movie and is a comedy entertainer with an abundance of humour quotient. The Plaintiff had approached the New Delhi High Court (“Court”) for an interim injunction restraining the defendants from releasing the defendants' film under the trademark/title “HARI PUTTAR” which is visually and phonetically similar to the plaintiffs' trademark HARRY POTTER. Decision: The New Delhi High Court dismissed the plaintiff's plea on the following grounds :
  • Assuming that though there is structural or phonetic similarity in the words ‘HARRY POTTER’ and ‘Hari Puttar’, - ‘HARRY POTTER’ films are targeted to meet the needs of an elite and exclusive audience. Cognoscenti and an audience will be able to discern the difference between a film based on ‘HARRY POTTER’ books on the one hand and the film ‘Hari Puttar’, which is a Punjabi comedy, on the other.
  • The yardstick for determining the infringement of a trademark will differ for different cases. Consumer product such as soaps or even pharmaceutical products may be purchased by an unwary purchaser or even an illiterate one, but the possibility of an unlettered audience viewing a ‘HARRY POTTER’ movie is remote.
 
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