Telecom Disputes Settlement & Appellate Tribunal (TDSAT): The Coram of Justice S.K. Singh (Chairperson) and A.K. Bhargava (Member) while considering the factors of deceptive similarity, allowed this petition.
In the instant case, the petitioner, a broadcaster of “News & Current Affairs” television channel was authorized to use the name and logo of “Harvest Television Network Private Limited” under an MOU. The petitioner applied for a change in name and logo from “Harvest TV” to “Tiranga TV”.
By a letter, the petitioner communicated to the respondent of a deposit of Rs 75,000 for processing fees for the said change and also sought urgent permission for it. Thereafter, the petitioner was served with a legal notice from “Harvest Television Network Private Limited” to discontinue any mark or logo bearing resemblance to “Harvest TV”. Due to the legal action, the name and logo of “Harvest TV” ceased to be available to them. Therefore, the petitioner could not run its Television channel.
Counsel for the petitioner, Amit Sibal contended that for the change in name and logo, there is no requirement to seek approval and/or permission from the respondent.
While the petition was still pending, the Tribunal ordered petitioner to continue using the name and logo “Harvest TV”. The petitioner was called upon to ask whether its proposed name and logo “Tiranga TV” does not violate any provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950, Flag Code of India, 2002 or the Trademarks Act, 1999. The Tribunal considered the fact that the name “Tiranga” itself does not violate any provisions of the aforesaid Statutes. Furthermore, the Counsel for the petitioner voluntarily undertook not to use saffron and green which is there in the emblem of Tiranga TV until the issue is finally decided. The petitioners were allowed to use the name without using the colours as an interim arrangement.
After the interim order was made, the petitioner started telecasting with a changed logo, not the original one for which it sought approval.
Counsel for the respondent, Vikramjit Banerjee, Addl. Solicitor General submitted that the name Tiranga TV with the logo appears to have a colorable imitation with that of the Indian National Flag. Moreover, the respondent – Ministry of Information & Broadcasting submitted that provision of processing fee is to discourage a large number of requests for change in names and other forms of changes.
By an Office Memorandum, Department of Consumer Affairs, Emblem Names had objected to the use of the logo “Tiranga TV” under Section 3 of the Act of 1950. The Counsel for the petitioner contradicted this by submitting that Section 3 makes a distinction between name and logo; pointed out that there many companies whose name starts with “Tiranga” and had been approved too. Furthermore, the counsel submitted that another news channel – “India Ahead” uses the three colours in the Indian National Flag.
After analyzing the facts and circumstances of the case and submission of the parties, the Tribunal while observing the present case cited a judgment of the High Court of Andhra Pradesh – Ravikant Shinde v. Gujarat Heavy Chemicals Ltd., (2003) 45 SCL 89 (A.P.) where the Court decided upon an issue that whether the manufacture of “Kitchen Salt” in the name of “ Dandi” could be permitted for commercial use. The Court found out that the pictorial exposition is similar to that of Mahatma Gandhi taken at “Dandi March” and the inclusion of the name of Mahatma Gandhi in the Schedule of the Act of 1950 violates Section 3 of the said Act. Therefore, the Tribunal agreed that the use of “Tiranga TV” with the logo of saffron and green will amount to colourable imitation of Indian National Flag.
The Tribunal observed that impugned order in respect of name and logo opted at first choice is correct but struck aside in respect of other options but permitted the use of name and logo of “Tiranga TV” without the colours Saffron and Green.[Veecon Media & Broadcasting (P) Ltd. v. Union of India, 2019 SCC OnLine TDSAT 80, decided on 01-07-2019]