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Synopsis

The Delhi High Court has refused to interfere with the use of the word "Khiladi" by a Telugu film for its title, as it rejected a plea by the production house behind Akshay Kumar starrer films "Khiladi" and "Main Khiladi Tu Anari".

The bench of Justice Jyoti Singh dismissed the application by Venus Worldwide Entertainment alleging violation of its trade mark by the makers of the Telugu movie.

The court said that although the plaintiff's 1992 "Khiladi" was a huge success, no case of any "deceptive similarity and confusion" between the two films was prima facie present.

"No doubt that the movie ‘KHILADI’ was a huge success and also gave a pedestal to the lead actor and earned him the sobriquet of ‘Khiladi Kumar’... but it is settled that whether or not a trademark has acquired a secondary meaning is a matter of trial and secondly, this factor cannot give monopoly to the Plaintiff over the word ‘KHILADI’ for the purpose of claiming infringement, in the absence of registration in the word ‘KHILADI’," the court said in its recent interim order dated August 17.

The plaintiff production house claimed that the use of the trademark ‘Khiladi' was exclusively associated with it and no one else. It prayed for directions to restrain the defendants from infringing the plaintiff’s trademark.

On the contrary, the counsel for the defendant opposed the plea and contended that the film was released in theatres, both in Telugu and Hindi dubbed versions, in February 2022 and was made available on OTT/Satellite Platforms thereafter.

Justice Singh observed that "Khiladi" was a "generic word of non-distinctive character" and in the instant matter, neither the storyline of the two films in question nor the lead cast and language were the same.

The court also noted that as many as 40 films and shows had been produced in various languages with the name "Khiladi" and out of those, only two were produced by the plaintiff.

"The sine qua non (the essential or basic condition) of an action for infringement i.e. deceptive similarity and confusion is prima facie missing in the present case and sans evidence of confusion or deceptive similarity in the device marks, at this stage a finding of infringement cannot be rendered in favour of the Plaintiff, in the absence of registration in the word ‘KHILADI’,” the court said.
     
"This court is of the view that the plaintiff has failed to make out a prima facie case in its favour and balance of convenience also does not lie in favour of the Plaintiff. Rather, the balance of convenience tilts in favour of the Defendants and it is the Defendants who will suffer irreparable loss and injury if the injunction is granted. The application is accordingly dismissed," the court ruled.

Case Title: Venus Worldwide Entertainment Private Limited v. Popular Entertainment Network (PEN) Private Limited & Anr.