Most, of you reading this blog will be familiar with this infamous character “Baburao” immortalised by Paresh Rawal, a famous actor in Bollywood. What if you come to know that this “Character” has been a subject of 25 Crore Rs. Legal notice! yes, you read it right. This famous character has been a subject of 25 Crore Rs. Legal notice sent to ‘The Great Indian Kapil Show & Netflix’ by the film producer Firoz Nadiadwala.
This happened just ahead of The Great India Kapil Show grand finale featuring actor Akshay Kumar. This happened when the promo of the finale showed ‘Kiku Sharda’ featuring as the Character “Baburao”, as can be seen in the cover image. Nadiadwala, who owns the rights, claims the act was done without permission. His team says this amounts to copyright infringement under Section 51 of the Copyright Act and trademark infringement under Section 29 of the Trademarks Act.
The following remarks were made by Firoz Nadiawala (As reported by Mint):
“Baburao is not just a character, but the soul of Hera Pheri. This legacy was built with our sweat, vision, and creativity, and no one can hijack or misuse it without our permission”
He further mentioned how Paresh Rawal (Actor) nurtured this role with his sweat and hard work:
“Paresh Rawalji nurtured the role and put his heart and soul into it. No one has the right to misuse it for wrongful commercial gain. We will protect what we have created because culture is not for exploitation, it is for preservation.”
Adding to the remarks of the Producer Nadiadwala, their lawyer Sana Raess Khan added:
“The unauthorised use of my client’s iconic character is not just infringement; it is blatant theft for commercial gain. The law will not allow the dilution of rights that have been lawfully earned and zealously protected. These rights will be defended with the full force of legal action so that no one treats a creative legacy as a free commodity for exploitation.”
Netflix along with the Great Indian Kapil show is expected to respond soon to the legal notice, failing which, it is set to have a legal recourse. The legal notice claims several demands which include: the immediate removal of the Baburao segment from Netflix, social media, and affiliated platforms; a written assurance that the character will not be used again without explicit permission; a formal apology within 24 hours; and compensation amounting to Rs 25 crore to be paid within two days.
The Author’s input –
The first important question that needs to be addressed is that, whether the Character “Baburao” is trademarked for it to be claiming infringement? Surprisingly, the answer is a yes, this said character is trademarked bearing trademark application number: 5553624.
The current case is said to fall within the four corners of section 29 of the Trademark Act, of 1999, in simple words, Section 29 talks about deceptive similarity, which is to say – if a trademark is deceptively similar to any other Registered Trademark, and is causing commercial gain then such a mark is said to be deceptively similar and infringing on that original registered trademark.
However, there are exceptions, for this section as is laid down in several judgements one of the foremost important judgements is that of “TATA & Sons V. Greenpeace International” where it was laid that “Parodical use of trademark for non-commercial purposes does not amount to infringement of Trademark under section 29 of the TM-Act”.
This condition makes us understand that – “An exception can be carved out if and only if there is no commercial gain with regard to the use of any Trademark” applying this principle here we can clearly come to the conclusion that, this is a textbook definition of the “Trademark Infringement” as this was firstly and lastly for the commercial gain only, hence leading to Infringement.
The second allegation was made by the producer and their lawyer on the basis of Section 51 of the Copyrights Act, let us now examine this allegation. The said section is simply meaning the following:
Copyright work is said to be infringed if any person without a proper licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a license so granted or of any condition imposed by a competent authority under this Act.
That said, there are certain exceptions of Copyright Infringement which are mentioned in the Section 52 of the Copyrights Act:
(i) Private and personal use, including research;
(ii) criticism or review, whether of that work or of any other work;
(iii) the reporting of current events and current affairs, including the reporting of a lecture delivered in public.
The first exception indicates about use in private and personal confines; however, the said case is not reflecting what the exception says, the very use of the character “baburao” was done on a public platform named “Netflix” and hence, the exception does not apply. The Second exception speaks about a fair criticism or review, however, the exception does not attract here, for the simple reason that, this display of Character “Baburao” was not for criticism and review but certainly was for “Monetary gain and Public entertainment consumption”.
The Third exception mentions about the reporting of current events and current affairs, including the reporting of a lecture delivered in public, however, the current use of character “Baburao” was an act of non-authorized use and that of public display for entertainment and hence, the exception does not attract.
Therefore, giving a cursory look at the exceptions we can clearly decipher the fact that, none of these exceptions are attracted to the current case at hand, on the contrary, we can clearly decipher the monetary gain, use of character without proper license being done here. Therefore, the said event is a clear case of copyright infringement under Section 51 of the Copyright Act.
