On 14 July 2010, Tata Sons, the intellectual property holding company for the Indian industrial conglomerate the Tata Group, applied for an injunction against Greenpeace India for using its “T within a circle” device in a virtual game on the Greenpeace website. Tata Sons petitioned for a temporary injunction and damages, arguing that the game, called “Turtle vs Tata”, tarnished their trade mark and defamed their company. The game contained a Pac-Man style maze where the object of the game was for the turtle characters to defeat the “Tata demons”, the demons of course being represented by the Tata mark. Greenpeace created the game in response to Tata Steel’s construction of Dhamra port on the east coast of India near the Orissa river, which is the natural habitat of the olive ridley turtle.
Greenpeace denied any trade mark infringement, arguing that their virtual game was lawfully created under a right to parody and free speech pursuant to s 29(4) of the Indian Trade Marks Act (1999). Greenpeace also argued that the name “Tata demons” was a hyperbole, and was therefore not defamatory.
Justice Bhat of the Delhi High Court accepted Greenpeace’s arguments, upholding the right to unfettered free speech under the “Bonnard rule” (Bonnard v Perryman (1891) 2 Ch 269). In doing so, Bhat J dismissed Tata’s plea, stating that an injunction would thwart public debate on such a controversial environmental issue.
The decision has been hailed by lawyers as an evolutionary decision in Indian intellectual property law, as it sheds some light to the question whether intellectual property law can be used to restrict public opinion, and also explores the overlap between trademark law and defamation.
Anyone up for some demon hunting? You can beat my score here.
Thanks to Vandana Chatlani at the India Business Law Journal for bringing this story to the IP Whiteboard’s attention.