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5th Jamia National MOOT COURT COMPETITION, 2015

Jamia Millia Islamia University,New Delhi

IN THE HONBLE SUPREME COURT OF


MORDOR

[SLP (C) No. 1/2015)]


(Under Article 136 of Constitution of Mordor )

In the case of:

Moonshine Mordor Pvt Ltd & anr..


(petitioner/Appellant)
v.
Neptune Mordor Pvt Ltd .
(Respondent)

Clubbed with SLP(C) NO 2/2015


(Neptune Mordor Pvt Ltd vs. Moonshine Mordor Pvt Ltd & anr)

Upon submission to the Honble Chief Justice of


Mordor and his companion justice of the Honble
Supreme Court of Mordor

MEMORIAL ON BEHALF OF petitioner

TEAM JM-15TEAM CODE JM


15-01

TABLE OF CONTENTS
LIST OF ABRIVIATION ... 3
INDEX OF AUTHORITIES
Statutes.......................................................................................................4.
Books...........................................................................................................4.
Table of Cases.............................................................................................4.
STATEMENT OF JURISDICTION..6
STATEMENT OF FACTS.............................................................................................7
STATEMENTS OF ISSUES .....9
SUMMARY OF ARGUMENTS................................................................................10
ARGUMENTS ADVANCED..12
ISSUE-1

Whether the Neptune Mordor Pvt. Ltd. Infringe the copyrights of


Moonshine Mordor Pvt.
Ltd.?.............................................................12
ISSUE-2

Whether using the name of MMBL in the advertisement of SuperDunk


causes Trademark dilution of well known trademark India
Moonball
Basketball
League?................................................................................19
ISSUE-3

Whether the Neptune was indulging in unfair ompetition,commercial


misappropriation and unjust commercialinrichment?......................23

PRAYER... 31

Memorial Submitted on behalf of Petitioner

LIST OF ABBREVIATIONS
AIR
All
Cal
Cr.P.C.
Del
Ed.
Guj
IPC
IC
Mad
n.
Ori
p.
P&H
Pat
TTC
FC
Cr LJ
HC
ILR
SCC
Ors.
Para
Govt.
Sec.
Kmph
N.Y.
Cal. Ct. App.
Ill. App. Ct.
N.W.
N.E.
K.B.
Penn. St.
i.e.,
@

All India Reporter


Allahabad High Court
Calcutta High Court
Code of Criminal Procedure
Delhi High Court
Edition
Gujarat High Court
Indian Penal Code
Indian Cases
Madras High Court
Foot Note no.
Orissa High Court
Page No.
Punjab and Haryana High Court
Patna High Court
Travel Ticket Collector
Foreign Correspondents
Criminal Law Journal
High Court
Indian Law Reporter
Supreme Court Cases
Others
Paragraph
Government
Section
Kilometer per hour
New York Supreme Court
California Petitioner Report
Appellate Cort of Illinois
North Western Reporter
North eastern Report
Kings Bench
Pennsylvania State
That is
Alias

Memorial Submitted on behalf of Petitioner

INDEX OF AUTHORITIES
STATUES REFERRED

The Constitution of Mordor, 1950


The Copyright Act 1957
The Lanham (Trademark) Act
The Trademark Act 1999
Transfer of Property Act, 1882
BOOKS REFERRED

nd

WADEHRA B.L.Law Relating to Intellectual Property, 5

Ed. 2011;

Universal Law Publication Co., New Delhi-India;


th

DR. MYNENI S.R. Law of Intellectual Property, 6


Hyderabad;

Ed. 2013,Asia Law House,

th

SHUKLA M.N. Law of Torts, 20 Ed. 2013, Central Law Agency, Allahabad;
th

RATANLAL & DHIRAJLAL Law of Torts, 25 Ed. Reprint 2008 (edited


by Justice G.P. Singh) Wadhwa & Company Nagpur;
BLACKS LAW DICTIONARY, (7th ed. 2009)

CASES REFERRED
Issue 1
1. Akuate Internet Services Pvt. Ltd. & Anr. Vs. Star Mordor Pvt. Ltd. & Anr. FAO (OS)
153/2013 and CM Appl. 4665/2013
2. Jilubhai Nanbhai Khachar, Etc. v. State Of Gujarat and Another AIR 1995 SC.
3.

Vikas Sales Corporation v. Commissioner of Commercial Taxes AIR 1996 SC 2082.

4. National Basketball Association and NBA Properties Inc. v. Sports Team Analysis and
Tracking Systems Inc., 939 F. Supp. 1071 (NBA-1 Case).
5.

Ministry of Information and Broadcasting, Govt. of India & Ors. v. Cricket Association

of Bengal & Ors.,(1995) 2 SCC 161.


6. Hogg v. Scott. 105 F. Supp. 12 (M.D. Ga. 1952)
7. Syndicate of The Press of The Universtiy of Cambridge on Behalf of The chancellor,
Masters and School Vs. B.D. Bhandari & Anr. 185(2011)DLT346.
8. Alfred Bell & Co. v Catalda Fine Arts, Inc., 191 F2d 99, 102 (2d Cir 1951.
Memorial Submitted on behalf of Petitioner

9. Alfred Bell & Co. Vs. Catalda Fine Arts, Inc., [191 F. 2d 99, 102 (2nd Cir. 1951).
10. Eastern Book Company and Ors. Vs. D.B. Modak and Anr. AIR 2008 SC 809).
11. Ladbroke (Football) Ltd. v. Willim Hill (Football) Ltd.
12. V. Govindan v.E.M. Gopalakrishna Kone and Anr. AIR1955Mad391.
13. L. Batlin & Son v Snyder, 536 F2d 486, 490 (2d Cir 1976).
14. C. Cunniah S Co. v.Balraj S Co. AIR1961Mad111.
Isssue 2
15. Laxmikant V Patel vs Chetan Bhatt Shah AIR (2002) SC 275.
16. Uniply Industries Ltd v. Unicorn Plywood Pvt Ltd. AIR 2001 SC 2083.
17. Heinz Italia v. Dabur India Ltd. 2007(7) SCALE 608.
18. Patel v. Shah 2002(3) SCC 65.
19. Godfrey Philips India Ltd v. Girnar Food & Beverages Pvt Ltd. 2004 (5) SCC 257.
20. NR Dongre vs Whirlpool Corporation (1996) 5 SCC 714.
Issue 3
21. Hardie Trading Ltd vs Addison Paint and Chemicals Ltd 2003(27) PTC 241.
22. Louis Vuitton vs S Malik CS (OS) 1825/2003.
23. Time Incorporated vs Lokesh Srivastav 2005 (30) PTC 3 (Del).
24. Apple Corps and Metropolitan, 101 N.Y.S.2d at 490.
25. International News Service vs. Associated Press, 248 U.S. 215, 39 S.Ct. 68 (1918).
26. Pittsburgh Athletic Co. et. al vs. KQV Broadcasting Co., 24 F. Supp. 490.
27. National Exhibition Company vs. Martin Fass, 143 N.Y.S. 2d 767.
28. Twentieth Century Sporting Club Inc. and Ors vs. Transradio Press Service Inc. and
Anr., 300 N.Y.S. 159.
29. Marksman Marketing Services Pvt. Ltd. vs. Bharti Tele-Ventures Ltd. & Ors.,
O.A. No. 78/2006.
30. Moorgate Tobacco Co. v. Philip Morris [156 CLR 414 (1984)].
31. Indian Council For Enviro-Legal ... vs Union Of India & Ors (2012)1CompLJ360(SC).
32. Tulalip Shores, Inc. v. Mortland, 9 Wash.App. 271, 511 P.2d 1402, 1404.
33. L & A Drywall, Inc. v. Whitmore Const. Co., Inc., Utah, 608 P.2d 626, 630.
34. International News Service vs. Associated Press, 248 U.S. 215, 39 S.Ct. 68 (1918).
35. Everhart v. Miles 422 A.2d 28 (Md. Ct. Spec. App. 1980)

STATEMENT OF JURISDICTION

Memorial Submitted on behalf of Petitioner

The Petitioner has the honour to submit before the Honble Supreme Court of Mordor, the
memorandum for the petitioner in the Special Leave Petition (C) No. 1/2015 filed by Moonshine
mordor Pvt Ltd under Article 136 of the Constitution of Mordor, 1950.
136. Special leave to appeal by the Supreme Court.

(1)

notwithstanding anything in this chapter, the supreme court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or order
in any cause or matter passed or made by any court or tribunal in the territory of Mordor.

(2)

nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the armed
forces.

The present memorandum sets forth the facts, contentions and arguments in the present case.

Memorial Submitted on behalf of Petitioner

STATEMENTS OF FACTS

Introduction
In the instant case, the petitioner namely Moonshine Mordor Pvt. Ltd. is an industrial
conglomerate, the Chairman of the Moonshine Group, Mr. Frodo Potter, was very fond of
Basketball and had a dream of starting an Annual Basketball Tournament in Mordor.

Mordor Moonball Basketball League (MMBL)


The young talent would be picked up every year from different parts of the country and
matches would be held for a period of one month across the country. Moonshine launched such a
tournament by the name of Mordor Moonball Basketball League (MMBL) and announced
huge prize money under the banner of MMBL. A team of sports managers was assembled and
after spending a substantial amount of money in advertising and setting up teams, the basketball
tournament was started.

Success of MMBL
Moonshine started MMBL in the year 2011, but it was not a big success initially.
However, by the time its third edition was announced in 2013, the tournament had started to gain
popularity and . The tournament in 2013 was a big success.

Distribution of Right
Lot of television channels tried to get the broadcasting rights from Moonshine. On 5th
August, 2013, Moonshine entered into an agreement with FreeSports Mordor Pvt Ltd.
(FreeSports), a national television channel, and assigned a bouquet of rights exclusively to
FreeSports which included

recording,

broadcasting,

mobile rights etc

Memorial Submitted on behalf of Petitioner

Neptune: Telecommunication Company


By the time 2014 edition was announced, the whole nation wanted to follow the
tournament. Seeing this potential market, Neptune Mordor Pvt. Ltd. (Neptune), a leading
telecommunication company, started a mobile application under the name SuperDunk.

SuperDunk : Mobile Application & Advertisement


SuperDunk is a Mobile Application which would provide minute-by-minute match
updates of MMBL. Neptune also started advertising Superdunk on electronic and print media.
Neptune used the name of MMBL in the advertisements for SuperDunk. The advertisements also
consisted of pictures of some prominent players of this tournament.

Success of SuperDunk
SuperDunk became a rage and millions of mobile users started downloading this free
Application on their mobile phones to receive free minute-by-minute match updates. Neptune
was able to rope in big advertisers like Pepsi, Nike, Mcdonalds etc on their SuperDunk App and
started making lot of profit.

Matter before the court


On getting to know about SuperDunk, Moonshine and FreeSports filed a suit against
Neptune and SLP before the honourable Apex Court of Mordor.

Memorial Submitted on behalf of Petitioner

STATEMENT OF ISSUES

ISSUE - I: whether the Neptune Mordor Pvt. Ltd. Infringe the copyrights of Moonshine
Mordor Pvt. Ltd.?

ISSUE -2: Whether using the name of MMBL in the advertisement of SuperDunk causes

Trademark dilution of well known trademark Mordor Moonball Basketball League?

ISSUE -3: Whether the Neptune was indulging in unfair competition, commercial

misappropriation and unjust commercial enrichment?

Memorial Submitted on behalf of Petitioner

SUMMARY OF ARGUMENTS

ISSUE - I: whether the Neptune Mordor Pvt. Ltd. Infringe the copyrights of Moonshine

Mordor Pvt. Ltd.?


It is humbly submitted before this Honble court that in the instant case there is gross
infringement of copyright by the work of respondent. Being the owner of the MMBL,
Moonshine has all the Right regarding any alienation or transfer of any Right relating to MMBL.
The moonshine has the ownership over the entire products or any output from this project which
can be any type of Right, Information etc. Moonshine assigned all right regarding broadcasting,
recording, mobile right etc in the favor of Freesports. Neptune Mordor Pvt Ltd made an
application i.e. Neptune through which it can publish and update the match score. As the
Moonshine is the sole owner of the MMBL all right regarding any information out of MMBL
are of Moonshine, but the Neptune without the permission or license from Moonshine give
mobile update regarding all the match information. The act of respondent is against equity,
justice and good conscience. Because the information regarding the matches is intellectual work.
Right regarding broadcasting, mobile activity, and recordings are specifically assigned to the
freesports by an agreement. Only the petitioner have right of MMBL, but the act of respondent
infringe such right.
ISSUE -2: Whether using the name of MMBL in the advertisement of SuperDunk causes

Trademark dilution of well known trademark Mordor Moonball Basketball


League (MMBL)?
The Neptune Mordor Pvt Ltd created a mobile application with the intention to provide
score updates and other time sensitive information related to the matches of the MMBL series.
The Neptune Mordor Pvt Ltd went as far as to use the name of MMBL for the advertisement of
their application Superdunk. The defendants (Neptune Mordor Pvt Ltd) by this act infringed the
Intellectual Property rights of the plaintiffs (Moonshine Mordor Co.) as their act of using the
Trademark of MMBL for advertisement of their application created trademark dilution and thus
constitutes liability. In the instant case the trademark of MMBL though it is a unregistered
trademark. But has acquired reputation and goodwill among its consumers since it became huge
Memorial Submitted on behalf of Petitioner

10

success in the year 2013. The trademark of MMBL can be seen as descriptive since it is nothing
but the abbreviation of Mordor Moonball Basketball League. Similarly, in the case of Hardie
Trading, the Supreme Court held that use of a trade mark as understood under Indian law may
not necessarily be use upon or in physical relation to goods. The court has held that to constitute
use there is no requirement for the goods bearing the mark to be physically present and made
available in India. The court has held that the presence of the mark in advertisements, in invoices
and in orders also constitutes infringement of the trade mark.

ISSUE -3: Whether the Neptune was indulging in unfair competition, commercial
misappropriation and unjust commercial enrichment?

it is humbly submitted before the honourable court that the dissemination of match
information through live match updates and score alerts by the defendants constitutes the tort of
'unfair competition' and 'commercial misappropriation/unjust commercial enrichment'. The
petitioner is the organiser of MMBL, it is a private organisation & it does not get any funding
from the Government in organising MMBL. And that it funds everything related to basketball,
right from setting up of the stadium to starting training academies for player, scorers etc., all by
itself. The main source of funding for Moonshine Mordor Pvt. Ltd is claimed to be from
monetizing the content arising from basketball matches, such as sponsorships and commercial
advertisements. The petitioner enters in an agreement with Freesports Where all the right
regarding broadcasting and communication is assigned in favour of Freesports . By the virtue of
agreement between the Freesports and Moonshine, only the Freesports have exclusive right to
communication and broadcasting of match. Whereas, the defendants have not acquired any
license from the plaintiff to disseminate any match information. The actions of Neptune Mordor
Pvt. Ltd is restraining Freesports from carrying out its rightful business and is also causing loss
to Freesports. That the defendants are not contributing any revenue and instant of that are eating
away the mobile and internet rights, without sharing the profit gained by them; thereby indulging
in unfair competition and unjust commercial enrichment. Due to the same act the respondent
committed the tort of unfair competition, commercial misappropriation and unjust commercial
enrichment.

Memorial Submitted on behalf of Petitioner

11

ARGUMENTS ADVANCED
ISSUE - I: whether the Neptune Mordor Pvt. Ltd. Infringe the copyrights of
Moonshine Mordor Pvt. Ltd.?
It is humbly submitted before this Honble court that in the instant case there is gross
infringement of copyright by the work of respondent.

1.1-Plaintiffs Proprietary Right is Violated


The instant case is hereby, before the honorable court, where the right of petitioner is
grossly violated by the act of defendant. Violation of copyright or any proprietary right can be
claimed in circumstances where there is clear violation of right which is existing due to any
statute or any form of agreement in the eye of law.
As a matter of fact, the moonshine is the organizer of Mordor Moonshine Basketball
League (MMBL), it owned exclusive rights in respect of content generated during a basketball
event. These included the right to commercially exploit all event content. The Moonshine is the
sole owner of MMBL. Moonshine consider MMBL project as its baby and the information

Memorial Submitted on behalf of Petitioner

12

(time sensitive information like match score) that was generated from the project is their
property1. on August 5th, 2013 the petitioner had entered in an agreement with Freesports
Mordor Pvt Ltd (hereinafter referred to as FreeSports), where the petitioner assigned a
bouquet of rights including
(1) Broadcasting Right2
(2) Recording Right :- Include Visual recording3 and sound recording4.
(3) Mobile Right5 which include Mobile Activation Rights6 etc.
Mobile Activation Rights means the right to make available any form of match
schedule; match and score alert and application exploited via SMS, MMS or any other form
of Mobile Communications Technology or Mobile Wireless Technology; It is clarified that no
other form of exploitation would be permitted such as competition, game, fantasy event,
predictor game, application or other activation which are expressly prohibited.
Being The owner of the MMBL, Moonshine has all the Right regarding any alienation or
transfer of any Right relating to MMBL .Moonshine is a project which is result of huge capital,
skill and labor. All the product or any output from this project which can be any type of Right,
Information shall be in the sole ownership of MMBL, all outputs (information, broadcasting

1 Fact sheet page no 02


2 Communication to the public in form of sound recording or visual recording of the broadcast and any
other right specified in 37 of Act.
3 2 (F) "cinematograph film"
4 2 (XX) "sound recording" means a recording of sounds from which such sounds may be producedregardless of
the medium on which such recording is made or the method by which the sounds are produced;

5 and The right to deliver or provide access to the Feed or Footage,Coverage in the Territory during
the Rights Period, for reception and viewing in an intelligible form on a Mobile Device.
6 Akuate Internet Services Pvt. Ltd. & Anr. Vs. Star Mordor Pvt. Ltd. & Anr. MIPR2013(3)1
Memorial Submitted on behalf of Petitioner

13

right etc) is their property. Also the expression "property" has been construed broadly rather than
in a narrow sense7.
Therefore Proprietary Right exists in the favor of petitioner. And one who shall interfere
with such right without any license cause infringement or violation of such Right. In instant all
such right are assigned in the favor of Freesports, including mobile right. As the mobile right 8
mobile application is included within the meaning of mobile right and clearly specified that even
a mobile application infringing such right and shall be caused as violative. Hence creating such
mobile application with purpose to publish match score infringes copyright. The act of
respondent is for the purpose of trade and earning which prejudicially affect the owner of the
copyright9.
As per Gujrat HC10 The Right on intellectual property is not narrow, but it also prevent others,
without his consent to or license, from exercising any other form of right attached a
copyright11.And to prevent unauthorized adaption or any act which go beyond what was
authorized.12
By taking reference to the case of National Basketball Association and NBA Properties Inc.13 it
was held by the madras High Court that The right of providing scores, alerts and updates is the
7 Sec 52 of the Transfer of Property Act, 1882 in the report of the 157th LawCommission of 1998,see also :
Jilubhai Nanbhai Khachar, Etc. v. State Of Gujarat and Another AIR 1995 SC 1.

8 Id.
9 51(ii) of The Copyright Act.
10 Deepak Printing v. Forward Stationary Mart(1981)PTC186.
11 George Hension ltd. v Restawlle Upholster(1975)RPC 31.
12 Chaplin V Leslie Frewin (Publishers)Ltd (1966)CH 71.
13 National Basketball Association v. Sports Team Analysis and Tracking Systems Inc., 939 F. Supp.
1071.
Memorial Submitted on behalf of Petitioner

14

result of expenditure of skill, labour and money of the organisers and so the same is saleable only
by them. The sending of score updates and match alerts via SMS amounts to interference with
the normal operation of the Organisers business. The defendant's act of appropriating facts and
information from the match telecast and selling the same is nothing but endeavoring to reap
where the defendants have not sown14.
Further the Apex Court in a case of15held that the organisers of the event had a right to sell the
telecasting rights of the event to any agency... it has the right to choose the best method to earn
the maximum revenue possible. In fact, it can be accused of negligence and maybe attributed
improper motives, if it fails to explore the most profitable avenue of telecasting the event, when
in any case, in achieving the object of promoting and popularizing the sport.In determining
Whether a work is entitled to copyright protection there remains the rough practice test that
what is worth copying is prima facie worth protecting 16. In the modern work everyone wants to
earn money without doing any work, publishing match score etc are some work which are at
priority to earn more at low cost. So to protect such work it is required to bring some strict
action. The instant situation is same. so need to protect the copyright in same.
In Hogg v. Scott17, "the true principle in all these cases is, that the defendant is not at liberty to
use or avail himself of the labour which the plaintiff has been at for the purpose of producing his
work, that is, in fact, merely to take away the result of another man's labour, or, in other words,
his property."
Therefore, considering the judgements of the learned Judges given in aforementioned cases, it is
evident that Neptune Mordor Pvt Ltd by their actions violated the propriety rights of the
Plaintiffs (Moonshine Mordor Co.).

14 Marksman Marketing Services Pvt. Ltd. vs. Bharti Tele-Ventures Ltd. & Ors., O.A. No. 78/2006.
15Secretary, Ministry of Information and Broadcasting, Govt. of India & Ors. v. Cricket Association of
Bengal & Ors (1995) 2 SCC 161 (MIB Case).
16 University of London Press Ltd v University Tutorial Press Ltd (1961)2CH601.
Memorial Submitted on behalf of Petitioner

15

1.1.1

Communication Right
As per sec 14(C)( ii)of The Copyright Act "copyright" means the exclusive right

subject to the provisions of this Act, to do or authorise the doing of any of the following acts in
respect of a work or any substantial part thereof, namely
(c) in the case of an artistic work,-(ii) to communicate the work to the public;
The section is very clear that the authorized person has right to communicate the
information or his work to the public in whichever mode he want to be. Since to play a sports is a
skill, and a skill is a artistic work which come within the meaning of art. As copyright prevail on
artistic work. And match score is the direct product of such artistic work copyright prevail on it.
In instant case all the right of players are in the pocket of Moonshine. The moonshine have all
right regarding players. Since all rights are with Moonshine, he is directly authorized to decide
that through which medium its copyrighted work is to communicated to the people. As
Moonshine is the sole authorized one to decide the mode of communication. But communicating
match score without his permission is violative of his right.
Hence the act of Neptune infringes the right of Moonshine.

1.2-Match score comes in Public Domain when it is broadcast and come to


knowledge of individual who do not have electronic device.
Public Domain means no copyright protection is available to the concerned work and
everyone is free to use that work in whatsoever manner he wishes to 18. Public Domain is also
known as publicly available content and Public Domain content and is often used
interchangeably to describe any content to which the public has access.
Blacks Law Dictionary19 Defines Public Domain as "realm of publications,
inventions, and processes that are not protected by copyright or patent. Things in the Public
realm can be appropriated by anyone without liability for infringement".

17 105 F. Supp. 12 (M.D. Ga. 1952)


Memorial Submitted on behalf of Petitioner

16

In the instant case the match score do not fall within the any of definition specified
above. The match score of MMBL comes in public domain when it is accessible to general
public or come to the knowledge of the person who does not have e-device or radio or
television. The match score of MMBL is not publicly available content. In the case of Akuate
Internet Services Pvt. Ltd. & Anr. Vs. Star Mordor Pvt. Ltd. & Anr.20 it was held by Delhi High
Court that c facts did not enter the Public Domain simultaneously with the events, due to the
time lag of few seconds as a result of time taken for transmission. "As a corollary, the
information has still not entered the Public Domain qua the persons who do not have any
access to a source of contemporaneous information i.e. TV or radio."
Also in the case of Secretary, Ministry of Information and Broadcasting, Govt. of
Mordor & Ors. v. Cricket Association of Bengal & Ors 21.where the Supreme Court held that
BCCI was a non-profit making organization, which officially controls the organised game of
cricket in Mordor and had held that BCCI's duty was to explore the most profitable avenues of
telecasting the event. Underlining the need to protect time sensitive information emanating
from cricketing events specifically score updates/match alerts the plaintiffs position was that
match information did not enter Public Domain for a particular span of time. A distinction was
drawn between those having access to television or radio and their ability to be informed about
match status in real-time and those who do not have such access (like those in office or
courtrooms etc) who cannot have instant access to match status.
Further in the case of B.D. Bhandari & Anr22 Delhi High Court given three common
ways under which a work can be attributed as a work in Public Domain':

18 Syndicate of The Press of The Universtiy of Cambridge on Behalf of The chancellor, Masters and
School Vs. B.D. Bhandari & Anr. 185(2011)DLT346
19 Blacks law Dictionary, 7th edition
20 FAO (OS) 153/2013 and CM Appl. 4665/2013
21 (1995) 2 SCC 161
Memorial Submitted on behalf of Petitioner

17

(i) No copyright protection available: copyright law does not protect this type of work. 13
Act provides for the works in which copy right subsists.14 further provides that No person
shall be entitled to copyright or any similar right in any work, whether published or
unpublished, otherwise than under and in accordance with the provisions of this Act or any
other law for the time being in force. When a work falls within the ambit of section 13 no
further action is mandatorily needed to make it copyright protected.
(ii) Dedication: the owner of a work may deliberately place it in the Public Domain'.
Section 21 of the Mordorn Copyright Act provides that an author may relinquish his copyright
by giving a notice to this effect to the registrar of copyright if he wishes so.
(iii) Expiration of copyright: the copyright has expired. Section 22 of the Mordorn Copyright
Act provides that the copyright in a work shall subsist within the lifetime of the author until
sixty years from the beginning of the calendar year next following the year in which the author
dies.
As per the guideline provided by Supreme Court match scores do not come in public domain
as firstly the present case fall within the meaning of work. Secondly no dedication and finally
no expiry of copyright. Therefore match score do not fall in public Domain.

1.3-Match score is product of originality and creativity


The Oxford English Dictionary defines copyright as the exclusive right given by law
for a certain term of year to an author, composer etc. (or his assignee) to print, publish, and sell
copies of his original work
Originality in copyright works is the sine qua non of all the copyright regimes of the
world & it means that the work owes its creation to the author and is not consisting of actual
copying."23 Commonly, the term original means something that is new, not done before &
owes its origin' to the 'author 24. Originality is the aspect of created or invented works, by as
being new or novel, and thus can be distinguished from reproductions, clones, forgeries, or
derivative works. It is a work created with a unique style and substance. The term "originality" is
22 Id.

Memorial Submitted on behalf of Petitioner

18

often applied as a compliment to the creativity of artists, writers, and thinkers. The test of
originality in India and UK is same 25, which is based on "skill, judgment , labour and investment
of capital,".26
Although a number of interpretations have been given to the term, there are certain points
on which agreement seems to have been firmly established. Primary among these points are two
basic concepts,

First that

the work must not be merely a copy of a previous work, and

secondly that

the work is the result of the investment of individual skill, judgment or labour"27
The U.S. Supreme Court in one of its decision 28 explained that the requirement of originality is
not particularly stringent and is comprised of two elements:
The work be independently created by the author (as opposed to copied from other
works) and ;
It possesses at least some minimal degree of creativity.
In the instant case the Moonshine invested its capital, labor, skill to start the MMBL. Which is
the product of its Originality and Creativity and therefore it had a copyright over it 29. The
MMBL fulfill the basic element discussed above which is given by US Supreme Court, As the
work is independently created by the Moonshine through proper planning, management, Skill,
Judgment and huge capital investment and is not copied from anyone and is a original work.
Secondly it possesses much degree of creativity as the idea to implement such innovative ideas
which have huge risk and conducting such huge entertainment event is creative in itself.
Therefore its the product of Originality and creativity.
23 Alfred Bell & Co. v Catalda Fine Arts, Inc,191 F2d 99, 102 (2d Cir 1951)
24 Id.
25 Eastern Book Company and Ors. Vs. D.B. Modak and Anr. AIR 2008 SC 809)
26 Ladbroke (Football) Ltd. v. Willim Hill (Football) Ltd. MANU/EG/0273/1964
27 Id.
Memorial Submitted on behalf of Petitioner

19

In few cases30 there is very little amount of originality but the same is protected by law
and "no man is entitled to steal or appropriate for himself the result of another's brain, skill or
labour even in such works." later judicial statements described originality in terms of individual
effort without regard to any degree of novelty or aesthetic merit. Eventually, originality came to
be seen as requiring no more than the absence of plagiarism 31. The work of Moonshine is also a
independent creation as it is not copied from any existing work.
The copyright, protection finds its justification in fair play. When a person produces something
with his skill and labour, it normally belongs to him and the other person would not be permitted
to make a profit but of the skill and labour of the original author. In the case of Walter V Lane32it
was held that in order secure copyright protection what is required is that the author must have
bestowed upon the work sufficient judgment, skill, labour or capital. It is immaterial whether the
work is wise or foolish, accurate or inaccurate or whether it has or has not any merit.
The word 'original' does not demand original or inventive thought, but only that the work should
not be copied but should originate from the author. In deciding, therefore, whether a work in the
nature of a compilation is original, it is wrong to consider individual parts of it apart from the
whole. For many compilations have nothing original in their parts, yet the sum total of the
compilation may be original. In such cases the courts have looked to see whether the compilation
of the unoriginal material called for work or skill or expense 33. If it did, it is entitled to be
considered original and to be protected against those who wish to steal the fruits of the work or
skill or expense by copying it without taking the trouble to compile it themselves. In each case, it
is a question of degree whether the labour or skill or ingenuity or expense involved in the
compilation is sufficient to warrant a claimto originality in a compilation34. The Court held that
in order to obtain copyright production for literary, domestic, musical and artistic works, the
subject dealt with need not to be original, nor the ideas expressed be something novel. What is
28 Id.
29Fact sheet page no 2 06
30 V. Govindan v.E.M. Gopalakrishna Kone and Anr. AIR1955Mad391
31 L. Batlin & Son v Snyder, 536 F2d 486, 490 (2d Cir 1976)
Memorial Submitted on behalf of Petitioner

20

required is the expenditure of original skill or labour in execution and not originality of
thought.35

ISSUE -2Whether using the name of MMBL in the


advertisement of Superdunk cause any trademark
dilution
A trade mark is a mark capable of being represented graphically and which is capable of
distinguishing the goods or services of one person from those of others 36. A trademark can be
represented graphically in the form of the company's logo or a signature and includes a device,
brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging
32 (1900)AC 539
33 Nag Book House V State of West Bengal AIR 1982 Cal 245
34 Macmillan v copper AIR 1924 PC 75
35 C. Cunniah S Co. v. Balraj S Co. AIR1961Mad111.
Memorial Submitted on behalf of Petitioner

21

or combination of colours or any such combinations 37. This includes abbreviation of any
name38.Trademark dilution happens when someone use a famous trademark in a way that is
likely to weaken its capacity to identify the famous trademark owner's goods or services or to
tarnish the reputation of the mark. The trademark owner need not show that you created
consumer confusion, and dilution may occur even if your goods or services are completely
different from the trademark owner's39.
As to the matter of the fact, the Neptune created a mobile application with the intention to
provide score updates and other time sensitive information related to the matches of the MMBL
series. The Neptune for the advertisement of their application used the name of MMBL without
the permission. The defendants by this act, create a confusion in the mind of people that the
Application must be authorized from Moonshione. Lots of people downloaded it as lot of
promotion is made in daily newspaper and television and through other medium. Promoting
application by using the MMBL mark without the permission of its owner is completely against
law. Hence created trademark dilution and thus constitutes liability.
To prevail the claim of trademark Dilution, plaintiff must establish that it has a valid
mark entitled to protection; and that the defendant used the same or a similar mark in commerce
in connection with the sale or advertising of goods or services without the plaintiff's consent.
The plaintiff must also show that defendant's use of the mark is likely to cause confusion as to
the affiliation, connection or association of defendant with plaintiff, or as to the origin,
sponsorship, or approval of defendant's goods, services or commercial activities by plaintiff 40. In
the instant case both the situation are fulfilled as the MMBL is very famous trademark. And the
respondent used the trademark without petitioner permission. Using the trademark by respondent
create confusion among the people that the application of Neptune is authorized application of
Moonshine. Therefore the act of respondent create trademark dilution.
36 Section 2 (zb) of the Trade Marks Act, 1999.
37 Sec 2(1)m of the Trademark Act 1999.
38 Laxmikant V Patel vs Chetan Bhatt Shah AIR (2002) SC 275.
39 http://www.dmlp.org/book/export/html/1535.
Memorial Submitted on behalf of Petitioner

22

Prior Use- The priority in the use of trademark must be established by the owner by the means
of prior adoption and the use of the mark and the reputation created by such use in consumers.
In Uniply Industries Ltd v. Unicorn Plywood Pvt Ltd, the Apex Court observed that the
test to determine priority in a mark is to determine continuous prior use and the volume of sales
or the degree of public familiarity with the mark. 41Also In NR Dongre v Whirlpool Corporation42
it was held that the trademark WHIRLPOOL was held to have acquired reputation and goodwill
in India. The mark WHIRLPOOL was also held to have become associated in the minds of the
public with Whirlpool Corporation on account of circulation of the advertisements in the
magazines. So, the using of this mark or any other identical mark by the defendant would cause
the confusion in the minds of the costumers and they might mistake the defendant's products with
the products of Whirlpool Corporation. So, the Court provided injunction to Whirlpool
Corporation.
Reputation and Goodwill- The rights in an unregistered mark can easily be claimed if the
proprietor of the mark establishes that the mark has acquired a reputation and goodwill in
relation to the goods and services in respect of which it has been used. If the owner of the
trademark is

able to prove his established reputation and goodwill among the

consumers.Moonshine started MMBL in year 2011 by the time its third edition was started
in2015, the tournament had started to gain popularity. The tournament in 2013 was a big success.
By the time 2014 edition was announced, the whole nation wanted to follow the
tournament43.These shows that the tournament got lots of popularity and created reputation and
goodwill in whole nation. The reputation and monetary goodwill of tournament can also judge by
the things that lots of television tried to get the broadcasting right.In Heinz Italia v. Dabur India
Ltd44, the Court relied on the "enviable reputation" acquired by the plaintiff to grant relief in a
passing off action, as the similarity between the rival products was capable of confusing the
relevant consumers.
An unregistered descriptive trademark is protected by law in India if it has acquired a second
meaning in the market and due to the presence of this attribute has become a well known mark in
the public. As in present situation the MMBL earned a good reputation in market, whole nation
40 1-800 Contacts, Inc. v. WhenU.com, Inc., 414 F.3d 400 (2d Cir. 2005).
Memorial Submitted on behalf of Petitioner

23

know about it, clearly signifies, that the mark of MMBL was a repudiated and well known
trademark in Mordor.
In Patel v. Shah45, the Supreme Court of India observed that a descriptive word can be
used as a trademark provided that it becomes well known and acquires secondary distinctive
meaning.
Also in the case of Godfrey Philips India Ltd v. Girnar Food & Beverages Pvt Ltd46, the Apex
Court observed that a descriptive trademark may be entitled to protection if it is shown to have
assumed a secondary meaning which identifies it with a particular product or source.
In the

case of

NR Dongre v. Whirlpool Corporation 47, it

was

held that the

trademark WHIRLPOOL had have acquired reputation and goodwill in India. The mark
WHIRLPOOL was also held to have become associated in the minds of the public with
Whirlpool Corporation on account of circulation of the advertisements in the magazines. So, the
using of this mark or any other identical mark by the defendant would cause the confusion in the
minds of the costumers and they might mistake the defendant's products with the products of
Whirlpool Corporation. So, the Court provided injunction to Whirlpool Corporation.
In the case of ITC Ltd. v. Philip Morris Products 48 The court emphasized that the following four
essential elements need to be established in order for a dilution case to succeed:
41 AIR 2001 SC 2083
42 (1996) 5 SCC 714
43 Fact sheet page no 1&2.
44 2007(7) SCALE 608.
45 2002(3) SCC 65.
46 2004 (5) SCC 257.
47 NR Dongre vs Whirlpool Corporation (1996) 5 SCC 714.
48 ITC LIMITED VS. PHILIP MORRIS PRODUCTS SA & ORS. 2010 (42) PTC 572 (Del.).
Memorial Submitted on behalf of Petitioner

24

the impugned mark is identical or similar to the senior mark;

the senior or injured mark has a reputation in India;

the use of the impugned mark is without due cause;

the use of the impugned mark (amounts to) taking unfair advantage of, or is detrimental
to, the distinctive character or reputation of the registered trade mark.

In the instant case the trademark of MMBL, though unregistered has acquired reputation and
goodwill among its consumers since it became a huge success in the year 2013. The trademark of
MMBL can be seen as descriptive since it is nothing but the abbreviation of Mordor Moonball
Basketball League.
Similarly, in the case of Hardie Trading49, the Supreme Court held that use of a trade
mark as understood under Indian law may not necessarily be use upon or in physical relation to
goods. The court has held that to constitute use there is no requirement for the goods bearing the
mark to be physically present and made available in India. The court has held that the presence
of the mark in advertisements, in invoices and in orders also constitutes use of the trade mark.
In the case of Louis Vuitton v. S Malik50, Louis Vuitton brought a case for violation of its EPI
STYLE trademark before the Delhi High Court. The court issued an ex parte interim injunction
and Anton Pillar orders against the defendant. In a case51, the court awarded both compensatory
damages and punitive damages for infringement of the trademark TIME. The court awarded the
plaintiff Rs 500,000 for loss of reputation, plus Rs 500, 000 in punitive damages, including
interest; the total damages award was Rs1.6 million. The court held that the defendants
magazine, which used the Hindi transliteration of the word Time with a distinctive red border,
was a slavish imitation of the plaintiffs trademark and held the defendant liable for
infringement.

49 Hardie Trading Ltd vs Addison Paint and Chemicals Ltd 2003(27) PTC 241.
50 Louis Vuitton vs S Malik CS (OS) 1825/2003.
51 Time Incorporated vs Lokesh Srivastav 2005 (30) PTC 3 (Del).
Memorial Submitted on behalf of Petitioner

25

So, considering the decisions of the learned Judges of the Honble courts in the aforementioned
cases, it can be understood that a no person or company can use a trademark that is already being
used by another company or person and that has already earned goodwill and reputation among
its consumers. It can also be observed that a trademark doesn't need to be registered to enjoy the
protection of law, it would get the required protection if it has been primarily used by the
proprietor and has established a reputation and goodwill amongst its consumers.

ISSUE:-3Whether the Neptune was indulging in unfair competition,


commercial misappropriation and unjust commercial enrichment?
It is humbly submitted before the honourable court that the dissemination of match
information through live unfair competition, commercial misappropriation and unjust
commercial enrichment. score cards, match updates and score alerts via Short Messaging Service
(SMS)/Mobile Value Added Services (MVAS), by the contesting defendants constitutes the tort

Memorial Submitted on behalf of Petitioner

26

of 'unfair competition' and 'commercial misappropriation/unjust commercial enrichment' 52. The


petitioner enters in an agreement with Freesports Mordor Pvt. Ltd. Where all the right regarding
broadcasting and communication is assigned in favour of Freesports & only the Freesports have
exclusive right to communication and broadcasting of matche. Whereas, the defendants have not
acquired any license from the plaintiff to disseminate any match information. Due to the same
act the respondent committed the tort of unfair competition, commercial misappropriation and
unjust commercial enrichment.
The petitioner is the sole organiser of basketball in Mordor, it has the exclusive rights in
relation to the content generated during a basketball event, including the right to commercially
exploit all content arising from such event since, Moonshine Mordor Pvt. Ltd. is a private
organisation & it does not get any funding from the Government in organising MMBL. And that
it funds everything related to basketball, right from setting up of the stadium to starting training
academies for player, scorers etc., all by itself. The main source of funding for Moonshine
Mordor Pvt. Ltd is claimed to be from monetizing the content arising from basketball matches,
such as sponsorships and commercial advertisements. Since Moonshine Mordor Pvt. Ltd has
given all its bouquet of right exclusively to Freesports. Here, Freesports is a sport broadcasting
channel that has invested a fortune to acquire the bouquet of rights regarding MMBL and the
only source to earn profit from its investment for Freesports is by broadcasting the basketball
leagues matches or by using other rights for which it has paid. These rights include
broadcasting, recording, mobile rights, etc. Therefore, The only source of earning of Freesports
is broadcasting, recording or using mobile rights. Thus, the actions of Neptune Mordor Pvt. Ltd
is restraining Freesports from carrying out its rightful business and is also causing loss to
Freesports.
That the defendants do not contribute their revenue or a part thereof for the purpose of
promoting the game of basketball in Mordor and instant of that the defendants are eating away
the mobile and internet rights, without sharing the profit gained by them; thereby indulging in
unfair competition and unjust commercial enrichment.

3.1

UNFAIR COMPETITION

52 Id.

Memorial Submitted on behalf of Petitioner

27

Unfair competition means Any act of competition contrary to honest practices in


industrial and commercial matters53 it also denotes any fraudulent, deceptive, or dishonest trade
practice that is prohibited by statute, regulation, or the common law. It consists of a body of
related doctrines that gives rise to several different causes of actions, including
(1) actions for infringement of patents, trademarks, or copyrights;

(2)

actions for wrongful appropriation of trade names, trade dress, and trade secrets; and
(3) actions for publication of defamatory, false, or misleading representations54
According to Blacks Law Dictionary55 Unfair Competition means a term which may be applied
generally to all dishonest or fraudulent rivalry in trade and commerce, but is particularly applied
to the practice of endeavoring to substitute one's own goods or products
in the markets for those of another, having an established reputation and extensive sale, by means
of imitating or counterfeiting the name, title, size, shape, or distinctive peculiarities of the article,
or other such simulations, the imitation being carried far enough to mislead the general public
or deceive an unwary purchaser, and yet not amounting to an absolute counterfeit or to the
infringement of a trademark or trade-name.
As per the definition provided the instant case come within the preview of unfair
competition.In the present situation the defendant is using the name, trademark and
photographs of MMBL to promote his application. The defendant without taking licence and
permission using the name of well known trademark which is against the principle of fair
competition. The Respondent is providing the match score/ updates to the people under the
mark of MMBL, it creates a presumption in the mind of individual that the information
provided by the application is authorised. As the application contains the mark, name,
abbreviation of MMBL. The Neptune, also in its advertisement using the Copyrighted picture,
and well known Trademark to promote the application. Which clearly specify that the property
of Petitioner is used by the Neptune without any licence or permission causing a huge
53 Paris Convention Art. 10bis
54 http://intellectualproperty.uslegal.com/unfair-competition/
55 6th edition
Memorial Submitted on behalf of Petitioner

28

economical and moral loss to Freesports as all the right regarding broadcasting and
communication is assigned in the favour of Freesports. It is discussed previously that the act
cause infringement of copyright and dilution of Trademark as accordance to the first definition
the act of respondent comes within the meaning of Unfair competition.
Endeavoring to reap where it has not sown Principle laid down in Apple Corps case:- Match
score is the direct product of match, and for the same these millions of amount are expended.
Therefore the information generated or gathered is at huge cost. Clearly satisfy that in present
situation can we follow the principle laid likewise, in the case Apple Corps and Metropolitan
Opera56, the court was primarily concerned with a defendant "endeavoring to reap where it has
not sown. It also recognized record piracy, a form of unfair competition, where the apparent
purpose is to reap where one has not sown, or to gather where one has not planted, or to build
upon, or profit from, the name, reputation, good will or work of another."
The who has fairly paid the price should have the beneficial use of the property The
Principle laid down in INS case:- The United States Supreme Court in the case of
International News Service57 held that. 'he who has fairly paid the price should have the
beneficial use of the property'. In the INS Case, The U.S. Supreme Court, observing that the
question, 'what is unfair competition in business' must be subjectively determined in particular
reference to the character and circumstances of each business, held:
The defendant's acts of taking material acquired by the skill, organisation and money of the
complainant and appropriating it and selling it as its own, is trying to reap where it has not
sown and would thus constitute unfair competition. The underlying principle behind the tort
of 'unfair competition is that 'he who has fairly paid the price should have the beneficial use of
the property'
In the present case also the freesports succeed to acquire the broadcasting right by paying huge
cost, as lot of television channel tried to get these right. The moonshine assigned bouquet of right
including broadcasting, recording, mobile right,communication right and many more in the
favour of freespots. As frteesports paid huge cost to get such right, all the profit and earning from
56 101 N.Y.S.2d at 490
Memorial Submitted on behalf of Petitioner

29

such right should be get in the pocket of freespotrs. But Neptune is violating the right and giving
match update which come within the meaning of communication right, without any licence or
permission therefore as specified by the US Supreme Court causing unfair competition.
The principle enunciated in the INS Case in respect to 'unfair competition' and 'unjust
commercial enrichment' has been followed in other cases regarding dissemination of
updates/alerts arising from sporting events. In the case of
Pittsburgh Athletic Co58, Court dealt with a case where the plaintiff prayed for a
preliminary injunction to restrain the defendants from broadcasting play-by-play reports and
description of baseball games played by the plaintiffs baseball team. The defendant admitted to
the broadcasting of play-by-play news of the plaintiff's games and asserted its intention to
continue doing so. In a similar case of National Exhibition Company59 the Supreme Court of
New York County was also faced with a prayer for injunction against the defendants who were
listening to the broadcast of play-by-play descriptions of baseball games organised by the
plaintiff and sending out simultaneous teletype reports of the games to radio stations for
immediate broadcast. The same Court in the year 1937,in Twentieth Century Sporting Club case60
was faced with a prayer for injunction against the defendants from interfering with the exclusive
right of the plaintiffs to broadcast a description of certain boxing exhibition.
In all the three cases, the Courts granted the injunction following the ratio of the INS Case. The
Reliance can also be made of all these case in present situation.
The Madras High Court also in the case of Marksman Marketing Services Pvt. Ltd.
vs. Bharti Tele-Ventures Ltd. & Ors 61, which dealt with nearly identical facts as the instant
case. In the Marksman Case, the Pakistan Cricket Board (PCB) had assigned its exclusive
57 International News Service vs. Associated Press, 248 U.S. 215, 39 S.Ct. 68 (1918)
58 Pittsburgh Athletic Co. et. al vs. KQV Broadcasting Co., 24 F. Supp. 490.
59 National Exhibition Company vs. Martin Fass, 143 N.Y.S. 2d 767.
60 Twentieth Century Sporting Club Inc. and Ors vs. Transradio Press Service Inc. and Anr., 300 N.Y.S.
159
Memorial Submitted on behalf of Petitioner

30

rights over a cricket series between India and Pakistan in the form of television rights, audio
rights, internet rights, SMS rights and other rights to several persons on global basis for a
valuable consideration. The Plaintiff prayed for an injunction under Sections 55 and 61 of the
Copyright Act, 1957, restraining the defendants from disseminating information relating to
scores, alerts and updates through SMS technology on wireless and mobile phones by means
of transmission to handheld mobile phones in respect of the matches. Further the Madras High
Court, relying on the decision of the New York Court 62 in the case of held The right of
providing scores, alerts and updates is the result of expenditure of skill, labour and money of
the organisers and so the same is saleable only by them. The sending of score updates and
match alerts via SMS amounts to interference with the normal operation of the Organisers
business. The defendant's act of appropriating facts and information from the match telecast
and selling the same is nothing but endeavoring to reap where the defendants have not sown.
Moorgate was particularly stressed upon to say that the broad tort of unfair competition cannot
be resorted to in order to prevent legitimate business in an activity of the kind indulged in by
the petitioners63
Therefore the respondent is liable for unfair competition, as per the principle laid down by the
US Sc. And followed in most of the judgement in India as well as in foreign Court.

3.2

Unjust enrichment
Unjust enrichment has been defined by the court as the unjust retention of a benefit to

the loss of another, or the retention of money or property of another against the fundamental
principles of justice or equity and good conscience. A person is enriched if he has received a
benefit, and he is unjustly enriched if retention of the benefit would be unjust64.
The Blacks Law dictionary defines Unjust enrichment doctrine as a General principle that one
person should not be permitted unjustly to enrich himself at expense of another, but should be
required to make restitution of or for property or benefits received, retained or appropriated,
where it is just and equitable that such restitution be made, and where such action involves no
61 Id.
62 Id.
63 Id.
Memorial Submitted on behalf of Petitioner

31

violation or frustration of law or opposition to public policy, either directly or indirectly 65.
Unjust enrichment of a person occurs when he has and retains money or benefits which in justice
and equity belong to another 66 and if retention of the benefit would be unjust.67
As in the instant case the MMBL is the project of Moonshine and for that huge cost is invested by
the petitioner. As Match score is the direct product of match, and for the same these millions of
amount are expended. All the right, Information regarding the match are the product of
moonshine project. The Moonshine is the sole entity who have all the Rights and is the Sole
owner. The Neptune without the permission licence used the property of petitioner and earn huge
amount of profit hence enriched from the estate of other. And retention such unjust benefit is
against the Fundamental principle of justice equity and good conscience. The act of defendant
come in preview of Doctrine of Unjust enrichment
The Bench of Justice Dalveer Bhandari Current CJI H.L. Dattu, of honourable Apex
Court in the case of ICEA68 set the essential of Unjust enrichment, which are
(i)
(ii)
(iii)

The receipt of a benefit that causes loss to the claimant, or


The wrongful receipt of a benefit by the defendant, or
The receipt of a benefit that belongs to the claimant69

In the instant case the essential laid down in ICEA are settled as
Firstly due to the act of Neptune the Petitioner incurred economical and equilateral loss.
As such right was assigned to the Fresports by paying huge cost and the Neptune is using such
right without paying any cost. The major thing is that as the Neptune publish match score under
the trademark of MMBL, it must be presumed by the industrialist that the Neptune is authorized
to publish match score and for that they paid huge cost to the give their advertisement to
64 Indian Council For Enviro-Legal ... vs Union Of India & Ors (2012)1CompLJ360(SC)
65 Tulalip Shores, Inc. v. Mortland, 9 Wash.App. 271, 511 P.2d 1402, 1404.
66 L & A Drywall, Inc. v. Whitmore Const. Co., Inc., Utah, 608 P.2d 626, 630.
67 Id.
68 Id.
Memorial Submitted on behalf of Petitioner

32

Neptune, which is unjustified. As these amount should be paid to one who have paid to earn such
right. As the principle that who has fairly paid the price should have the beneficial use of the
property70 therefore the petitioner incurred financial loss while Neptune earn Huge economical
benefit.
Secondly the defendant earn all these wrongfully as his act was without any license and
Contrary to the agreement. The act is violating the principle of justice, equity and good
conscience. There the defendant earns the benefit wrongfully. And
Finally as the petitioner have all the rights. He is lawfully entitled to earn such profit as
these benefits belong to petitioner. Therefore the Respondent receipts the benefit belong to
petitioner. And hence in the present situation unjust enrichment exist as it have all the essential
given in the case of ICEA.
Also in the case Everhart v. Miles71 the US court held that three elements must be
established in order to sustain a claim based on unjust enrichment:
(1) A benefit conferred upon the defendant by the plaintiff;
(2) an appreciation or knowledge by the defendant of the benefit; and
(3) The retention by the defendant of the benefit under such circumstances as to make it
inequitable for the defendant to retain the benefit without the payment of its value.72
The element given by the US supreme court totally fit in present case as
firstly the defendant incurred benefit73
Secondly the defendant act was not a mistake but he was well wised with the fact that he
incurred benefit which belongs to petitioner and going contrary to the law he published various
advertisement to promote the application indicate that he was having sufficient knowledge. And
69 Id.
70 International News Service vs. Associated Press, 248 U.S. 215, 39 S.Ct. 68 (1918)
71 422 A.2d 28 (Md. Ct. Spec. App. 1980)
72 Blacks law dictionary,Everhart v. Miles, 47 Md.App. 131, 136, 422 A.2d 28.
Memorial Submitted on behalf of Petitioner

33

Finally the respondent retains all the belong to the petitioner with him without paying any
payment to the petitioner. Therefore the element laid down in the Everhart v. Miles74 are identical
to present situation. Hence Unjust Enrichment prevails in present matter.

3.3Commercial Missappropriation
Commercial misappropriation is a category of invasion of privacy where one's name, image,
property, likeness, mark etc is used without permission for commercial purposes75.
In the case of INS76 the court of set a multi-factor "test," for misappropriation claim where
plaintiff is required to demonstrate that:
It generates or gathers information at a cost;
The information is time-sensitive;
A defendant's use of the information constitutes free riding on the plaintiffs efforts;
The defendant is in direct competition with a product or service offered by the plaintiffs; and
The ability of other parties to free-ride on the efforts of the plaintiff or others would so
reduce the incentive..or service that its existence or quality would be substantially threatened.
If the principle set in INS case are applied to instant case. They satisfy all the element.
Firstly for conducting event like MMBL required to invest huge amount of money. The
expenses of conducting of matches, stadium, players, training etc are very huge in amount.
Secondly, the information emanating from a match is very-very time sensitive therefore
the peoples are ready to pay any amount to get match update. And the success of Neptune itself
is due to the reason that match information is so sensitive. He application downloaded by many
people shows the sensitive nature of match score.

73 Submitted in ICEA case essential point


74 422 A.2d 28 (Md. Ct. Spec. App. 1980)
75 http://itlaw.wikia.com/wiki/Commercial_misappropriation
76Id.
Memorial Submitted on behalf of Petitioner

34

Thirdly the defendant is free riding on plaintiffs effort, as to acquire such right the
Freespors had to pay large amount of money whereas defendant has not acquired any right,
without the permission or license from petitioner publishing the match score and earning a huge
amount of profit. Without paying any cost. Therefore the third essential is also followed.
Fourthly the plaintiff is in direct competition with defendant as such rights are assigned to
Freesports. And the defendant is updating the match score. He is in direct competition. And
Finally Due to the act of respondent the market of petitioner is affecting as the Neptune
is giving match update at same instant.
Therefore, the instant matter follow all the set of principle lay down in the case of INS.
Hence in the present the commercial misappropriation exists.

Memorial Submitted on behalf of Petitioner

35

PRAYER

IT IS HUMBLY SUBMITTED BEFORE THE HONBLE SUPREME COURT OF


MORDOR THAT IN LIGHTS OF THE ABOVE ARGUMENTS, CASES AND
AUTHORITIES CITED, THE PETITIONER HUMBLY PRAYS BEFORE THE
HONBLE COURT:

To pass an injunction against the Respondent.


Appropriate penalty may be imposed for:
-Infringement of Copyright.

-Dilution of Trademark.
To award reasonable Compensation.
Any other relief that may be granted as this honble court may deem fit..

AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT IT MAY DEEM FIT
IN THE INTERESTS OF JUSTICE, FAIRNESS, EQUITY AND GOOD CONSCIENCE.
FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL DUTY BOUND FOREVER
PRAYS
Place: Mordor

Respectfully submitted

Date: ././2014

Memorial Submitted on behalf of Petitioner

36