Venus Worldwide Entertainment Private Limited, the producers of the 1992 Akshay Kumar-starrer ‘Khiladi’, had filed a lawsuit against makers of the 2022 Telugu film ‘Khiladi’, claiming that the use of the trade mark ‘Khiladi’ was exclusively associated with it. The Delhi High Court dismissed a plea for an interim restraining order by Venus Worldwide Entertainment Private Limited, the producers of the 1992 Akshay Kumar-starrer Hindi film Khiladi, in its trademark infringement suit against the makers of the Telugu film Khiladi that released last year. A single-judge bench of Justice Jyoti Singh in its August 17 interim order observed that although the plaintiff’s Khiladi was a huge success, no case of any “deceptive similarity and confusion” between the two films was prima facie present. “No doubt that the movie ‘KHILADI’ was a huge success and also gave a pedestal to the lead actor and earned him the sobriquet of ‘Khiladi Kumar’… but it is settled that whether or not a trademark has acquired a secondary meaning is a matter of trial and secondly, this factor cannot give monopoly to the plaintiff over the word ‘KHILADI’ for the purpose of claiming infringement, in the absence of registration in the word ‘KHILADI’,” the court said. The plaintiff had filed a lawsuit against the makers of the Telugu film, claiming that the use of the trade mark ‘Khiladi’ was exclusively associated with it and no one else. It prayed for directions to restrain the defendants – distributor Popular Entertainment Network (PEN) Limited and the producer – from infringing the plaintiff’s trade mark. The high court said that ‘Khiladi’ was a “generic word of non-distinctive character” and in the instant matter, neither the storyline of the two films in question nor the lead cast and language were the same. It was also noted that as many as 40 films and shows have been produced in various languages with the name ‘Khiladi’; out of those, only two were produced by Venus. “The sine qua non (the essential condition) of an action for infringement i.e. deceptive similarity and confusion is prima facie missing in the present case and sans (without) evidence of confusion or deceptive similarity in the device marks, at this stage a finding of infringement cannot be rendered in favour of the plaintiff, in the absence of registration in the word ‘KHILADI’,” the high court said. Justice Singh was of the view that Venus had failed to make out a “prima facie” case in its favour and “balance of convenience” also does not lie in its favour. The high court said that the balance of convenience tilts in favour of the defendants and it is the “defendants who will suffer irreparable loss and injury if the injunction is granted,” while dismissing Venus’s application for interim relief. The defendants opposed the application and informed the court that the film was released in theatres in February 2022 (in Telugu and the Hindi dubbed version) and was made available on OTT/satellite platforms later. On this point, the high court said that it agrees with the defendants that the movie is out of theatres and is only on the OTT/satellite platforms and any viewer would “first carefully look” through the entire poster of the film, including actors, title, storyline, director etc. before choosing to watch the film. The high court said that the pictures of the actors would be enough to enable the viewer to make a choice and understand that the defendants’ film has no relation to Venus’s film Khiladi.