Defamation suits, as any litigator knows, are not for the faint-hearted. So it was just as well that the first time an Indian court was asked to rule on a question of trademark infringement twinned with defamation, the defendant in question was Greenpeace, an environmental group synonymous with bold, headline grabbing campaigns.<\/p>\n
The lawsuit was initiated by Tata Sons, the owner of India\u2019s most valuable \u2013 and possibly best protected \u2013 trademark, following the launch in May 2010 of a Pac-Man style game called \u201cTurtle vs Tata\u201d on Greenpeace India\u2019s website. The game not only uses the Indian company\u2019s \u201cTATA\u201d mark and a stylized version of its \u201cT within a circle\u201d device, but also contains references to \u201cTata demons\u201d.<\/p>\n
Fighting back<\/strong><\/p>\n On 14 July 2010, Tata, which has frequently fought back against less blatant intrusions, requested an injunction against Greenpeace and damages of Rs 100 million (US$2.2 million) in Delhi High Court. Tata was represented by Anand and Anand, one of the country\u2019s best known intellectual property law firms.<\/p>\n At first Tata argued that the unauthorized use of its trademark amounted to infringement. Elaborating on this in a subsequent submission to the court \u2013 filed after Greenpeace responded to its suit \u2013 Tata said the distinctive identity of its trademark was being tarnished. \u201cThe present suit has been filed to protect the business, prospects and reputation and goodwill of the plaintiffs,\u201d Tata told the court.<\/p>\n However, these arguments failed to pass muster with the judge. On 28 January, Justice Ravindra Bhat dismissed Tata\u2019s plea for a temporary injunction. Tata was quick to file an appeal, but what makes Justice Bhat\u2019s 36-page judgment remarkable is how it traverses arguments raised by both parties and cuts through thickets of precedent before concluding that an injunction at this stage \u201cplainly would not be in public interest\u201d.<\/p>\n Disappointment and jubilation<\/strong><\/p>\n As expected, reactions from the principal lawyers involved have been markedly different.<\/p>\n Saikrishna Rajgopal, the managing partner of Delhi based Saikrishna Associates, which represented Greenpeace, praises what he calls an \u201cimmaculately articulated\u201d judgment that is \u201cbacked with perfect reasoning\u201d.<\/p>\n Olive Ridley turtles mating in the coastal waters off Orissa.<\/p><\/div>\n But Pravin Anand, the managing partner of Anand and Anand, is clearly disappointed and says he was \u201cvery surprised\u201d by it. \u201cThe balance is tilted against corporates,\u201d he says, describing the implications of the ruling for Indian companies.<\/p>\n Other intellectual property lawyers have been watching the proceedings from afar. \u201cWithout doubt, the judgment is a welcome development in the evolution of law in India as it addresses issues that have hitherto not been the subject of judicial scrutiny,\u201d says Nikhil Krishnamurthy, a senior partner at Bangalore-based Krishnamurthy & Co.<\/p>\n \u201cThe question of whether the law of trademark may be used to restrict public opinion is certainly a compelling one,\u201d he adds.<\/p>\n The olive ridley turtle<\/strong><\/p>\n While this dispute has just begun its meanderings through the Indian judicial system, its origins lie at the mouth of a little-known river on the east coast of India in Orissa. This is where Tata Steel, a member of the Tata group, is building Dhamra port in a 50:50 joint venture with Larsen & Toubro, one of India\u2019s largest engineering companies. The port is being developed by the two companies on a build-own-operate-share-transfer basis.<\/p>\n Environmental groups, including Greenpeace, have long opposed the port\u2019s construction as it lies close to an ecologically sensitive area that includes one of the largest nesting grounds in the Indian Ocean of the olive ridley turtle. This species of turtle is considered endangered and is protected under both Indian law and international conventions.<\/p>\n The developers have consistently said that they have received all the necessary clearances from government authorities. They also say that Dhamra has been designed to be an eco-friendly port and that all possible measures are being taken to minimize any impact on the endangered turtles.<\/p>\n Indeed, one of Tata\u2019s submissions to Delhi High Court included the following quote from an August 2010 report by the Central Empowered Committee, which was constituted by the Supreme Court to monitor compliance with its orders concerning forests and wildlife: \u201cDetails of the monitoring reports do not so far indicate any adverse impact of the Dhamra Port Project on the wild life and its habitats including the olive ridley turtles.\u201d<\/p>\n Unfair target?<\/strong><\/p>\n So, when on the 30th anniversary of the iconic Pac-Man video game, Greenpeace launched its own version of the game targeting Tata, one of the many questions Tata asked was \u201cwhy us?\u201d<\/p>\n Tata owns only 50% of the port, but appeared to be the sole target of the campaign against it. It saw this as evidence of Greenpeace intentionally targeting and maligning it and said that this \u201camounts to defamation in the form of libel\u201d. In its response to Greenpeace\u2019s statement to the court, Tata said \u201cthe very title of the game \u2018Turtle vs Tata\u2019 plainly states that Tata is the sole and deadly enemy of the turtles.\u201d<\/p>\n![\"Mating](\"https:\/\/www.greenpeace.org\/static\/planet4-india-stateless\/2018\/05\/GP01PEB_Medium_res.jpg\")
![](\"https:\/\/p3-admin.greenpeace.org\/india\/Global\/india\/image\/tata%20turtlegame.JPG\")
While pointing out that under the Trade Marks Act, the dilution or tarnishing of a trademark could happen only in the course of trade, Greenpeace argued that Tata had provided not a \u201cwhisper of averments\u201d to substantiate any of its claims.<\/p>\n