Articles published in news portal “Newslaundry” neither qualify as goods nor as service as defined under Section 2(j) and 2(z) of the Trademark Act: High Court Of Bombay
Mere use of the registered trade mark of the Sakal Media Group in articles authored by the petitioner and published by the news portal Newslaundry, do not fit into the definition of false application of the trade mark in relation to goods or services. This was said in the case of Prateek Chandragupt Goyal v. State of Maharashtra [CRIMINAL WRIT PETITION NO. 62 OF 2021] in High Court of Bombay.
The facts of the case date back to June 2020 when an FIR was lodged by Sakal Media Group stating that the petitioner had committed offence under Section 103 of the Trademarks Act by falsely applying trademarks of the Sakal Media Group in two articles he authored and which appeared on Newslaundry website. Assailing the FIR, the petitioner moved the High Court.
The petitioner contended that ingredients of the offence under Section 103 of the aforesaid Act were totally absent in the present case. Secondly, it was contended that the trade mark of Sakal Media Group was shown in the articles written by the petitioner and published on the news portal ‘Newslaundry’, only to indicate that those specific articles pertained to the Sakal Media Group. In these circumstances, there was no question of the said trade mark being falsely applied to any goods or services. Thirdly, it was contended that action of the petitioner was protected as a nominative fair use of the trade mark of Sakal Media Group under Section 30(1)(a) and (b) of the aforesaid Act.
On the other hand, the respondents by referring to Section 103 contended that the petitioner had clearly falsely applied the registered trade mark of Sakal Media Group by prominently showing the mark on articles published on the news portal ‘Newslaundry’. Secondly, it was contended that when the word ‘Sakal’ was clicked on online search, it led to the said articles authored by the petitioner and published on the news portal ‘Newslaundry’, thereby demonstrating that the offence under Section 103 of the said Act.
After analyzing the facts and keeping in mind the settled position of law on the subject, the Court said that “No doubt, the mark shown in the two articles is indeed the ‘trade mark’ of Sakal Media Group under Section 2(z)(b) of the aforesaid Act, but, the said mark being shown in the articles cannot be said to be in the context of either ‘goods’ or ‘services”. At the worst, if the online search for ‘Sakal’ led to the said articles, then that would be subject matter of an injunction suit but that falls within the realm of a civil dispute that could be raised by Sakal Group.
The Court referred to the case of Harayana Vs. Bhajanlal 1992 [1 SCC 395], where the Supreme Court has laid down that “when offence is not made out on a bare reading of the allegations and proceeding on the basis that such allegations are true, the criminal proceedings and First Information Report deserve to be quashed”. Hence, the writ petition was allowed.