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INTRA UNIVERSITY MOOT COURT COMPETITION

2016
2016
Team Code : T-27
Before
THE HONOURABLE HIGH COURT OF MUMBAI, MUMBAI,

APPLICATION NO. _____/2016


Jack Samuelson and Brightwalker Studios
Ltd.
Petitioners

v.

Earl Grey and Edified Comics Ltd ................


............................ Respondents

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INDEX
1. ABBREVATIONS
2. LIST OF CASES AND BOOKS REFERRED
3. LIST OF AUTHORITIES
4. STATEMENT OF FACTS
5. ARGUMENTS ADVANCED
6. PRAYER

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LIST OF ABBREVIATIONS
USED
ABBREVIATION
SCC
LTD
Vs
AIR

WORD
SUPREME COURT CASES
LIMITED
VERSUS
ALL INDIA REPORT

LIST OF BOOKS REFERRED


1.
2.
3.
4.

BOOKS REFERRED
Law Relating to Intellectual Property by V.K. Ahuja
Principles of Intellectual Property by N.S. Gopalakrishnan and T.G. Agitha
Law Relating to Intellectual Property by Dr. B.L. Wadhera
Intellectual Property by Elizabeth Verkey

LIST OF AUTHORITIES
REFERRED
1. THE COPYRIGHT ACT OF 1957
2. THE TRADEMARK ACT OF 1999
3. CODE OF CIVIL PROCEDURE

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LIST OF CASES REFERRED


1. Macmillan vs Cooper, AIR 1924 PC 75
2. Camlin Private Limited vs National Pencil Industries, 2002 PTC 349, Del (DB) 3.
University of London Press Limited vs University Tutorial Press, (1916) 2 Ch. D.
601.
4. Ladbroke Limited vs William Hill Limited, 1964, I All ER 465.

STATEMENT OF FACTS

Jack Samuelson is a celebrated author who is celebrated for his work in fantasy
fiction. Mr. Samuelson gained popularity and critical acclaim for his fantasy series A
Ballad of Malice and Power, a series which is based on an entirely fictional land
constituted of Kings, dragons and mystical creatures which have been fused with a
complex and addictive political drama for power. Mr. Samuelson has decided to
publish the Ballad of Malice and Power in a series containing seven books.

The first book was titled a A Flagon of Dreams and was published and released in
the year 1994. This book received tremendous response from youngsters.
Subsequently, Mr. Samuelson released each book at irregular intervals, with the last of
the books being released in 2014. The printed and digitised versions were available
for sale in the US, European Union, Canada, China and the Indian subcontinent.

Due to the overwhelming popularity of the book series and the legions of fans A
Ballad of Malice and Power had, many television networks were prowling for the
exclusive rights to produce A Ballad of Malice and Power in the form of a full
fledged TV series. The rights were acquired by Brightwalker Studios, a US based
network and production company in 2005 and had acquired an exclusive license to
adapt the Ballad of Malice and Power into a full fledged television show called
Valar Dohaeris : The Beginning. BSL released the first season of the series in 2009
and the show was a huge hit and became the most watched show in television history.

The show was available in TV channels in the US. However, it was available for
viewership in India exclusively through a paid online portal named ZoomIn, which
was available in its online portal as well as its mobile application.

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Ms. Earl Grey is a huge fan of Ballad of Malice and Power and she grew up reading
the books written by Jack Samuelson. Ms. Grey was, in particular, fascinated by the
character from the Series called Boromir Bohemia. The character Boromir finds
little mention in the books and is not alive in the ongoing storyline in the books or in
the TV Series. However, the other characters make references to Boromir and his
feats. Boromir is considered to be the greatest conqueror in the land of Vengursa and
was the last man to ride a fully grown dragon. He is also credited with playing an
important role in shaping the political landscape in the Ballad of Malice and Power.

Ms. Grey was disappointed with the fact that the neither the Series nor the books shed
light on Boromir Bohemias character. Ms. Grey believed that she could develop the
character of Boromir Bohemias character beyond the descriptions in the book. Ms.
Grey started this process of developing the character of Boromir by sketching him a
face and a body and gave Boromir his own storyline.

Ms. Grey had started her out her tryst with developing Boromirs character by drawing
the isolated mentions made by Jack Samuelson in the books by collating them and
then she developed her own storyline on the basis of the scarce information regarding
Boromir which had been provided in the books and defined him as the protagonist in
her version of the story. She employed her own imagination to create a plot and a new
world altogether in intricate detail to explain the exploits of Boromir Bohemia. Ms.
Grey titled her work on the life of Boromir Bohemia as The Bohemian Rhapsody.

Ms. Grey expressed her interpretation of Boromir Bohemias life in the form of a
comic strip in her own blog called The Pickwick Papers. It has to be noted at this
stage, neither Samuelson nor BSL decided to pursue any action against Ms. Greys
fanfiction.

Ms. Greys Bohemian Rhapsody became widely popular and garnered a massive
response from readers across the world. The Pickwick Papers broke the 10,000 rank
barrier in the Alexa global website ranking system. Ms. Grey developed her own
fanbase due to this. Owing to frequent visitors to her blog, Ms. Grey started hosting
advertisements and raked in a decent amount of revenue from the advertisers.

Edified Comics [ECL] Ltd., a huge commercial comic book publication and a
company registered and based out of Mumbai, saw a more lucrative and larger
opportunity in Greys work. In late 2014, ECL approached Ms. Grey and secured an

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all compassing IP assignment in The Bohemian Rhapsody in exchange for a hefty
sum as royalty. Ms. Earl Grey agreed to the terms that she will retain creative control
over the story, subject to a basic review from ECLs own creative team. ECL then
initiated the production process.

Before entering the comic book market, ECL wanted to monetize the popularity of
Boromir Bohemia from Greys comics and in order to generate some pre-release hype
among the public, ECL started manufacturing some merchandise of The Bohemian
Rhapsody in India. These products included apparel, costumes, accessories, artwork
wallpapers, stationery and other products. Accordingly on 4th January 2015
(04/01/2015), ECL obtained registration of the word BOROMIR and in pictorial
representation of Boromir Bohemia from the comic book. Released in Februrary
2015, each of the merchandised product bore the distinct image of ECLs logo and the
pictorial representation of Boromir, which was a registered trademark, on their label
and price tag.

A year after the publication of Samuelsons last book in the Ballad of Malice and
Power, BSL released the last episode of the show in 2015, concluding a hugely
successful run on the small screen and garnered 20 million views. Throughout the
series, Boromir finds few mentions and is never visually represented on the show.
Nonetheless, the character of Boromir Bohemia still maintains a pivotal position over
the plotline.

BSL was in no manner oblivious to the potential and importance of Boromirs


character and the feasibility of the character to be potrayed as an independent
character with his own storyline. Accordingly, after the series ended in 2015, BSL
developed and produced a spinoff series called Boromir the Conqueror based on the
life and conquests of Boromir Bohemia. BSL commenced marketing and released a
trailer in June 2015. The show was globally released on 9th February 2016.

Furthermore, ECL released the Bohemian Rhapsody in the ongoing and hugely
popular ComiCraze event in Mumbai on 16th August 2016. The online version was
available for a modest Rs. 30 and the hard copy was available for sale for a price of
Rs. 59. The Bohemian Rhapsody has since received an overwhelming response
worldwide.

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ISSUES RAISED
1. Is the Jurisdiction of the Case in the judicature of the Mumbai High Court?
2. Is the Respondents work original work?
3. Is the registration of trademark for the term BOROMIR by the defendant valid?

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ARGUMENTS ADVANCED
ACCEPTANCE OF JURISDICTION
1. The defendants accept that the jurisdiction of the case lies in the judicature of The
Mumbai high court according to the petitioners argument.

2. THE RESPONDENTS WORK IS ORIGINAL WORK.


The respondent humbly submits that the work done by the respondent is an original
work in the defendants own right. The respondents would like to draw attention to the
fact that the first defendant, Ms. Earl Grey, has not copied any work by the defendant
and has used her own imagination to create the world and other characters related to
The Bohemian Rhapsody and has in good conscience used her own imagination to
create the story of Boromir Bohemia. The work of the defendant can be proved to
be original by the test of originality.
THE TEST OF ORIGINALITY
The Test of Originality with regards to literary work confers the criteria for literary
works to be considered as an original work as to the authenticity of the work. The
word original in the legal fraternity does not mean that the work must be the
expression of original or inventive thought1. The Copyright Act is not concerned with
are not concerned with the originality of the idea but the expression of such an idea.
The originality relates to the expression of the thought or idea but not the idea in
itself. The Act stipulates that the expression of the idea must be original or novel and
should not be copied from another work it should originate from the author.

1 Law relating to Intellectual Property Rights by V.K. Ahuja, Page 27

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In case of Macmillan vs Cooper, it was held that it was the labour, skill and capital of
another person, must not be appropriated by the other 2. To gain copyright to the
product, it must be proved that sufficient skill and capital must have been imparted in
the work to give it a unique and distinct character which differentiates the work of the
author from that of the work from that of the original work, even though he has drawn
on knowledge from an already existing material3.
1) The defendant humbly affirms that the defendant had applied sufficient labour and
skill for making her literary work completely different from that of the first
defendants work. The first respondent did not even have the idea of creating a
story for Boromir Bohemia.
2) The respondents humbly affirm that the first respondent spent a lot of skill and
labour in creating an entire world and different characters for expressing the life of
the aforementioned character.
The defendant humbly would like to submit the fact that the first petitioner did not have
any intention of publishing any work about the character Boromir Bohemia. The first
respondent was the person who had the idea to create and publish a story for the said
fictional character and in pursuit of doing so, had created a separate world and unique
characters for the literary work not present in the work of the first petitioner. In fact, it
was the first respondent who laboured to create a body and a full fledged story for the
character Boromir Bohemia and is justified in doing so, in case of Warner Brothers
Limited vs Colombia Broadcasting4 the Court held that no character was protectable
under copyright law unless the character is extremely delineated so as to constitute a point
of view character rather than being a character being told in some other characters point
of view. The character of Boromir Bohemia in the series titled Ballad of Malice and
Power and the television series titled Valar Dohaeris: The Beginning does not provide
a well delineated character for Boromir and hence the character is not qualified for a
copyright as the character is of no importance in the series.
3. THE RESPONDENTS HAVE A VALID TRADEMARK FOR THE TERM
2 AIR 1924 PC 75
3 Law relating to intellectual property by V.K.Ahuja, page 4 216 F2d 945

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BOROMIR THE CONQUEROR.
The respondents have a valid trademark for the term Boromir the Conqueror and
according to the Trademarks Act, 19994, a trademark can be anything that can be
represented graphically and may include any name, word, symbol, configuration,
device etc and a trademark is defined as anything that can be represented graphically
and which is capable of distinguishing the goods or services of one person from those
of others.
a. Distinctiveness
The term Boromir the Conqueror refers to the comic book character developed by
the first petitioner Ms. Earl Grey and the characteristic qualities of the character
Boromir includes:
I.

The distinctive name of Boromir the Conqueror

II.

The name being presented in a distinctive font which is easily identifiable

III.

The character of Boromir, unlike the petitioners work having a tangible form and
having an actual story and distinctive from the petitioners work.
The respondents would further like to draw attention to the fact that the
respondents had actually started the work on Boromir Bohemia after reading
the books and the first respondent, Ms. Earl Grey had published the work in
her blog titled The Pickwick Papers and had received tremendous response
for the said story. The respondents humbly would like to attract the attention
of the Honourable Court to the fact that the petitioners did not pursue any legal
action while the first respondents story published in the blog became famous.
The respondents humbly submit that the first respondent has spent sufficient
labour and skill to make The Bohemian Rhapsody qualify as original work
and the first petitioner had issued the creative rights regarding the publication
of The Bohemian Rhapsody to the second respondent and the work in its
own right is an original work and the second respondent has spent sufficient
labour and skill to make the trademark valid.

4 Trademarks Act, Section 2.

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PRAYER
In the light of arguments advanced and authorities cited, the Petitioner humbly submits that
the Honble Court may be pleased to adjudge and declare that:
1. Dismissal of the suit filed by the petitioner.
2. The charges incurred by the defendant for facing the suit.