Hon'ble Mrs.
Mattel (hereinafter referred to as the Plaintiff) is in the business of selling games, toys etc. for children since the year 1945. In the year 1993, Plaintiff merged with Fisher-Price and since then is one of the biggest manufacturer and seller of the children/toddler's toys world-over. The Plaintiff claims to have adopted the trademark 'KICK AND PLAY' for game and playthings in the year 2010 and started using the said trademark in
As per the Plaintiff, the Plaintiff in the year 2017, launched the 'Infant to Toddler Rocker' with 'Rainforest Family' characters featuring therein which products were launched in
In the present suit, the Plaintiff claims infringement of its copyright in respect of its six characters of 'Rainforest Family', as also passing off the goods of the Defendants as that of the Plaintiff's by using trademark 'KICK AND PLAY' as also the violation of the shape mark of its 'KICK AND PLAY' baby gym.
Submissions
The Plaintiff argued on the provisions of Section 40 of the Copyright Act, 1957 that deals with the power to extend copyright to foreign works. Plaintiff submitted that the series of the six cartoon animal characters were granted copyright in the jurisdiction of
Observations
The Court observed that a bare perusal of the six characters shows that they have been uniquely prepared with the unique colour combination which is attractive and appealing to the children and by virtue of Section 40 of the Copyright Act, registrations in favour of the Plaintiff in respect of six characters in USA would also extent to
- Ex-parte interim injunction granted by the
Delhi High Court with respect to Copyright –The Hon'ble Court granted an ex-parte ad-interim injunction in favour of the Plaintiffs and against the Defendants. Nos. 1, 2, 3 and other Defendants sought to be impleaded asJohn Doe as Defendant No.5, against violating of the Plaintiff's Copyright in six animal characters of the 'Rainforest Family' in any manner till the next date of hearing. It may be noted that the Hon'ble Court was of the view that any ad-interim injunction with respect to trademark violation of Plaintiff's word mark 'KICK AND PLAY' as also the design mark, to be given only after the Defendants have been granted an opportunity of hearing. - Flipkart (Defendant No.4) ordered to remove listings of the products infringed – In addition to the injunction ordered, the Court also directed Defendant No. 4, namely the leading e-commerce platform, Flipkart to remove listing from its platform which relate to the advertisement and sale of the products which violate the copyright of the Plaintiff in the six characters of the 'Rainforest Family' within 48 hours from the date of the said order.
At present, Flipkart, i.e. after complying with the order dated
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