Madras High Court
Metronation Chennai Television ... vs Yupptv Inc on 21 June, 2019
Author: Krishnan Ramasamy
Bench: Krishnan Ramasamy
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.06.2019
CORAM
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
C.S.(COMM.DIV)No.670 of 2018
and O.A.Nos.919 to 921 of 2019
Metronation Chennai Television Private Limited
#86, EVK Sampath Road
Vepery
Chennai-600007
Tamil Nadu
Represented by its Chief Operating Officer
Mr.J.Prasannajothi ... Plaintiff
Vs.
1.YuppTV Inc.
#11175 Cicero Drive
Suite 100, Alpharetta
GA-30022, USA
Represented by its Chief Executive Officer
& Director
Mr.Udayanandan Reddy
2. YuppTV India Private Limited
No.8-2-293/82/A/773,
Road No.44, CBI Colony
Jubilee Hills, Hyderabad-500033,
Telangana, India
Also having address at-
#38-40, Plot No.3,
IonIdea Building, EPIP Area,
http://www.judis.nic.in
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Bengaluru-560066,
Karnataka, India
Represented by its Managing Director
Mr.Uday Nandan Reddy ... Defendants
PRAYER: Plaint under Order IV, Rule 1 of O.S.Rules, Read with
Order VII Rule 1 of C.P.C. Read with Sections 134 &135 of the
Trade Marks Act, 1999; Sections 37 & 62 of the CopyRight Act,
1957, praying for a Judgment and Decree against the defendants
(a) Granting Permanent injunction restraining the Defendants by
themselves, their agents, associates, representatives, assigns or
men, or anyone claiming through them from in any manner
infringing the Plaintiff's Trade Mark "THANTHI TV" bearin
registration No.2320588 in respect of Telecommunications, satellite
cable and Direct to Home Television broadcasting services for their
services including on YUPP TV or any other avenue via electronics,
satellite, print in any manner, form or means including through
internet connected devices, android devices, smart TV's, Smart
Bluray players, set-top boxes, mobile handsets, smart phones,
gaming consoles, desktop-laptop computers, tablets and their
technological advancements whatsoever;
(B)Granting PERMANENT INJUNCTION restraining the
Defendants by themselves, their agents, associates,
representatives, assigns or men, or any claiming through them from
in any manner passing off the Defendants existence through
http://www.judis.nic.in
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YUPP TV services by misappropriating Plaintiff's registered
trademark THANTHI TV, publication service and contents in any
manner or means whatsoever including by showing or make believe
a connection between the Plaintiff and the Defendants mark and
services in a manner as to lead the public to believe that
Defendants' YUPP TV is emanating or is in some way connected to
the Plaintiff's celebrated THANTHI TV;
(C) Granting PERMANENT INJUNCTION restraining the
Defendants by themselves, their agents, associates,
representatives, assigns or men, or anyone claiming through them
from in any manner infringing Plaintiff's copyright and/or
dealing with or exploiting Plaintiff's copyright in the contents of
THANTHI TV including works in the nature of text print, audio,
video, photography, images, cartoon, caricature, debates,
interviews, moving images, cinematograph, picture, visual, sound
accompaniments, their excerptions; use of Plaintiff's THANTHI TV
content in part and/or as a whole' by any means indulge in telecast,
imitation, display, diffusion, copy, save, store, relay, replay, pause-
save for later viewing, through any process or technological
advancements in any form or format accessible by public,
consumers, via satellite, internet, set-top box, wi-fi, cable, wireless
diffusion, software applications, tags & links, electronic
contraptions, console, android devices, smart phones, mobile hands
sets, television, computer or other similar purpose functioning
devices and applications through YUPP TV or other communication
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platforms in/through any manner form, technological advancements
or means wahtsoever;
(D) Granting PERMANENT INJUNCTION restraining the
Defendants by themselves, their agents, associates,
representatives, assigns or men, or any claiming through them from
in any manner infringing Plaintiff's broadcast reproduction
rights by dealing with or exploiting the contents of THANTHI TV
including works in the nature of text print, audio, video,
photography, images, cartoon, caricature, debates, interviews,
moving images, sound accompaniments, their excerption, content in
part and/or as a whole, by any means, imitation, display, diffusion,
copy, process or technological advancements in any form or format
accessible by public, consumers, via satellite, internet,set-top
box,wi-fi, cable wireless diffusion, software applications, tags &
links, electronic contraptions, console, television, computer or other
similar purpose functioning devices and applications through YUPP
TV or other communication platforms in/through any manner, form,
technological advancements or means whatsoever;
(E) Granting PERMANENT INJUNCTION restraining the
Defendants by themselves, their agents, associates,
representatives, assigns or men, or anyone claiming through them
from obstructing, altering, contaminating, diminishing,
usurping, threatening normal operations of Plaintiff's THANTHI TV
and access to THANTHI TV media services in any manner, form or
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means whatsoever;
(F) A Direction to the Defendants to render a true and faithful
account of the profits earned by it through the infringement of
Plaintiff's trade mark THANTHI TV and copyright in contents of
THANTHI TV as well as infringement of Broadcaster's rights of the
Plaintiff; submit details of subscriptions to YUPP TV, details of
advertisers & advertisements telecasted on THANTHI TV through
YUPP TV and money collected worldwide for accessing/subscribing
YUPP TV enabling public/customers of Defendants to access
THANTHI TV thereby; submit details of money earned from
advertisers for advertising, telecasting on THANTHI TV through
YUPP TV to the Plaintiff;
(G) A Direction to the Defendants to pay the Plaintiff as damages
all such illegal profits and money earned from - (i) the public
through subscription to YUPP TV that enabled public/customers of
the Defendants to access THANTHI TV through YUPP TV; and (ii) the
advertisers of the Defendants advertising on THANTHI TV through
YUPP TV unapproved and unknown to the Plaintiff;
(H) Directing the Defendants to pay to the Plaintiff the cost of the
suit.
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For Plaintiff : Mr.Perumbulavil Radhakrishnan
For Defendants : Mr.Keerthikiran Murali
JUDGMENT
When the matter is taken up for hearing, a Memo of compromise dated 30.04.2019 has been filed on behalf of both the parties. The said Memo has been duly signed by both the parties and attested by their respective counsels. The terms of the Memo of Compromise reads as under:
"1. The Plaintiff and defendants have arrived at a compromise on the terms mentioned below and that the record of compromise constitute the part of the Judgment and Decree in the suit to be passed by this Honourable Court.
2. The defendants admit and acknowledge that Plaintiff is the sole and exclusive owner of the content on the Thanthi TV Channel which is utilized by the defendants. Further, the Plaintiff having represented that it is the sole and exclusive owner of the rights in the content telecast on Thanthi TV channel, Plaintiff agrees to grant a non-exclusive worldwide territory license except Middle East and North Africa (MENA http://www.judis.nic.in 7 Region) Territory to the Defendants for distribution of Thanthi TV channel content by way of OTT (Over the Top Platform) only till 29th April,2020. No License is granted to Defendants for distribution of Thanthi TV channel and its content in any form in the Territory of Middle East and North Africa (MENA Region) during the term.
3.The Defendants agree to pay to the Plaintiff a sum of Rs.55,00,000/- (Rupees Fifty Five Lakhs only) approximately USD.78,570/- being compensation for the past usage and for the period of utilization of the Plaintiff's content of Thanthi TV till 29th April, 2020 in the following manner:
a. Rs.1,509,900 (USD 21,570/-) on signing these presents in April,2019.
b. Rs.1,050,000 (15,000 USD) on or before 15th May, 2019.
c. Rs.980,000 (14,000 USD) on or before 15th July, 2019.
d. Rs.980,000(14,000 USD) on or before 15th September, 2019.
e.Rs.980,000 (14,000 USD) on or before 15th December, 2019.
http://www.judis.nic.in 8 In the event of default of any one of the above instalments, the Plaintiff is entitled to claim interest from the defendants at a rate equal to the lesser of two percent (2%) per month and the maximum legal rate and the Defendants shall be restrained from further use of the Plaintiff's content. Such interest shall accrue from said due date and Defendants shall be liable for all reasonable legal costs and expenses incurred by Plaintiff in collecting any past due amounts.
4. The parties hereto are at consensus that the amount to be paid above and the period of utilisation shall be effective till 29th April, 2020 and that future licence free for the following year thereafter shall be decided based on mutual agreement between the parties and a licence agreement may be drawn and executed before expiry of the existing term period till 29th April, 2020, on such terms as the parties shall agree.
5.The Defendants agree to execute Licence Agreement in respect of the earlier period and for all future periods both in respect of licencing the content and use of Trade Mark along with requisite affidavit to be filed before the respective authorities. The Parties are at consensus that the defendants are not entitled to sub-distribute or delegate any right herein licenced to third parties, and the licence is non-transferable, http://www.judis.nic.in 9 provided however, the access and availability of the 'Yupp TV' application/service integrated or any other device/platform is permitted and shall not be deemed to be a sub-license or transfer of any right therein.
6. The Defendants have agreed that they shall not over-run any advertisement, edit (save to the extent required to comply with applicable laws(including without limitation censorship laws) in the worldwide territory) or alter, the content telecast by the Plaintiff on the Thanthi TV channel.
7. The Defendants having represented that they have the technical expertise to track pirated sites and agrees to help, to the extent commercially reasonable, the Plaintiff to track and pull down any such pirated sites portraying the plaintiff's Thanthi TV channel. The Plaintiff undertakes to execute such specified form of authorization, from time to time and as may be required under law, to enable the Defendants to carry out effective anti-piracy actions.
8.Both the parties agree that the terms of this memorandum of compromise is confidential and shall not be disclosed to third parties save and except as may be required by any law, http://www.judis.nic.in 10 KRISHNAN RAMASAMY, J arr rule, regulation, court order or governmental agency and except on a need to know basis to each party's employees, accountants, auditors, investors, lenders and legal counsel."
2. The learned counsel appearing on either side has submitted that the suit may be decreed in terms of Memo of Compromise.
3. Recording the Memo of Compromise dated 30.04.2019, this suit is decreed in terms of Joint Memo of Compromise. The Memo of Compromise shall form part of the decree. No costs. Consequently, connected Applications stands closed.
20.06.2019 arr C.S.(COMM.DIV)No.670 of 2018 and O.A.Nos.919 to 921 of 2019 http://www.judis.nic.in 11 http://www.judis.nic.in