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5th Jamia National Moot Court Competition, 2015
IN THE HON’BLE SUPREME COURT OF MORDOR
Special Leave Petition Jurisdiction
SLP(C) NO. 1/2015 and SLP(C) NO. 2/2015
IN THE MATTERS BETWEEN
MOONSHINE MORDOR PVT LTD. & Another ….APPELLANTS
Versus
NEPTUNE MORDOR PVT. LTD ….RESPONDENT
CLUBBED WITH
NEPTUNE MORDOR PVT. LTD ….APPELLANTS
Versus
MOONSHINE MORDOR PVT LTD. & Another ….RESPONDENTS
MEMORANDUM ON BEHALF OF THE APPELLANTS
Memorial on the Behalf of the Appellants Page 1
TEAM CODE: JM15-20
5th Jamia National Moot Court Competition, 2015
TABLE OF CONTENTS
ABBREVATIONS……………………………………….…3
INDEX OF AUTHORITIES..................................................4
STATEMENT OF JURISDICTION......................................6
STATEMENTS OF FACTS..................................................7
STATEMENT OF ISSUES...................................................9
ARGUMENTS ADVANCED……………………………10
ARGUMENTS ADVANCED.............................................11
PRAYER FOR RELIEF......................................................30
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5th Jamia National Moot Court Competition, 2015
ABBREVIATIONS
¶ : Paragraph
AIR : All India Reporter
Art. : Article
Cri LJ / Cr LJ : Criminal Law Journal
Del : Delhi High Court
Ed. : Edition
Factsheet : Statement of Facts, 5th JNMCC, 2015 Problem
Freesports Ltd. : Freesports Mordor Pvt. Ltd.
Hon'ble : Honourable
IC : Indian Cases
MMBL : India Moonball Basketball League
Moonshine Ltd. : Moonshine Mordor Pvt. Ltd.
Neptune Ltd. : Neptune Mordor Pvt. Ltd.
p. : Page No.
PIL : Public Interest Litigation
RTE, Act : Right to Free and Compulsory Education Act, 2009
SC : Supreme Court
SCC : Supreme Court Cases
SCJ : Supreme Court Journal
SCR : Supreme Court Reporter Sec. Section
v. : Versus
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INDEX OF AUTHORITIES
B OOKS AJAY SAHANI, LAL’S COMMENTARY ON COPYRIGHT ACT, 1957 (5TH ED. DELHI LAW
HOUSE, 2013)
RANBIR SINGH, IYENGAR’S COMMENTARY ON THE COPYRIGHT ACT (8TH ED.,
UNIVERSAL LAW PUBLISHING CO. PVT. LTD., 2013)
KEVIN GARNETT, COPINGER AND SKNE JAMES ON COPYRIGHT (7TH ED., THOMSON
REUTERS, 2014)
AJAY SAHANI, LAL’S COMMENTARY ON COPYRIGHT ACT, 1957 (4TH ED. DELHI LAW
HOUSE, 2011)
AKHIL PRASAD, ADITI AGARWAL, COPYRIGHT LAW DESK BOOK, (UNIVERSAL LAW
PUBLISHING CO. PVT. LTD., 2009)
3MELVILLE B. NIMMER, DAVID NIMMER, NIMMER ON COPYRIGHT (LEXIS NEXIS, 2010)
P.NARAYAN, INTELLECTUAL PROPERTY LAW (3RD ED. EASTERN LAW SCHOOL, 2013)
HELLEN E NORMAN, INTELLECTUAL PROPERTY LAW (OXFORD UNIVERSITY PRESS,
2011)
HELLEN E NORMAN, INTELLECTUAL PROPERTY LAW (2ND ED.OXFORD UNIVERSITY
PRESS, 2014)
C ASES
International News Service v. Associated Press1(INS Case) 248 U.S. 215, 39 S. Ct. 68
(1918)
Pittsburgh Athletic Co. et al v. KQV Broadcasting Co. 24 F. Supp. 490
National Exhibition Company v. Martin Fass 143 N.Y.S. 2d 767
Twentieth Century Sporting Club Inc. and Ors. v. Transradio Press Service Inc. and Anr
300 N.Y.S. 159
National Basket ball Association and NBA Properties v. Sports Team Analysis and
Tracking Systems Inc. 939 F. Supp 1071
Marksman Marketing Services Pvt. Ltd. v. Bharti Tele-Ventures Ltd. & Ors. O.A. No.
78/20061 248 U.S. 215, 39 S. Ct. 68 (1918)
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Mahabir Kishore & Ors. v. State of Madhya Pradesh 1989 SCR (3) 596
Star India Pvt. Ltd and Anr. v. Haneet Ujwal and Ors. CS(OS) No.2243/2014
Sulamangalam R. Jayalakshmi and Another v. Meta Musicals, Chennai and Others 2000
PTC 681, 694
Cannon Kabushiki Kaisha v. MGM (1999) RPC 117
Caterpillar Inc. v. Mehtab Ahmed, 2002 (25) PTC 440 (Del )
Marage Studies v. Counter Feat Clothing Co. Ltd. case reported in (1991) FSR 145
Intel Corporation v. S. Ramanan Director and Anr., (Chennai High Court, OA 276 of
2002)
Primark Stores ltd. v. Lollypopclothing ltd (2002) FSR 60
Magnolia Metal v. Tanden Smelting (1900) 17 RPC 477 at 486
Office cleaning v. Westminster (1946) 63 RPC 39 at 42
Turmix, oertli v. bowman (1957) RPC 388 at 397
Mosely v. Secret Catalogue Inc 537 us 418 (2003)
STATUTES REFERRED
The Copyright Act, 1957
The Indian Trademarks Act, 1999
Trademark Dilution Revision Act of 2006 (TDRA)
W EBSITES R EFERRED
www.manupatra.com
www.westlaw.com
www.selvamandselvam.in
www.jstor.org
www.bits-pilani.ac.in
www.medianama.com
www.lexology.com
www.spicyip.com
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STATEMENT OF JURISDICTION
THE PETITIONER HAS APPROACHED THE HON’BLE SUPREME COURT OF MORDOR UNDER ARTICLE 136
“ARTICLE 136 IN THE CONSTITUTION OF INDIA
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 India
(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.”
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STATEMENT OF FACTS
Part I
Mordor is a Republic in South Asia which is one of the most rapidly emerging markets in the
world. Moonshine Mordor Pvt. Ltd. (Moonshine) is an industrial conglomerate engaged in a
variety of manufacturing businesses which wanted to grow and invest into other businesses as
well. Moonshine launched a tournament by the name of “Mordor Moonball Basketball League”
(MMBL) and announced huge prize money under the banner of MMBL through which young
talent would be picked, every year from different parts of the country and matches would be held
for a period of one month across the country in 2011. In its 3 rd edition i.e., during 2013 many
television channels tried to get the broadcasting rights from Moonshine which were subsequently
bagged by Free Sports Mordor Pvt. Ltd. (Free Sports), a national television channel via an
agreement signed on 5th August, 2013 which provided with “bouquet of rights” exclusively to
Free Sports which included recording, broadcasting, mobile rights etc.
Part II
Further in 2014 tournament, seeing the potential market, Neptune Mordor Pvt. Ltd. (Neptune), a
leading telecommunication company, started a mobile application under the name SuperDunk,
which would provide minute-by-minute match updates of MMBL via on electronic and print
media. Neptune was able to rope in big advertisers like Pepsi, Nike, McDonald’s etc. on their
SuperDunk App and started making lot of profit by using the name of MMBL and prominent
pictures of players in this tournament. On getting to know about SuperDunk, Moonshine and
FreeSports filed a suit against Neptune since Moonshine had assigned the “bouquet of rights” to
FreeSports, which felt aggrieved that Neptune was indulging in unfair competition, commercial
misappropriation and unjust commercial enrichment. Moonshine contended that their property
rights were being violated and that the match information was a product of its “originality and
creativity” and therefore it had a copyright over it. Another issue was with regard to usage of the
name MMBL in the advertisements of Neptune to promote its Mobile application SuperDunk.
Part III
The Single Judge heard the contentions of both sides and returned with the following findings:
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There does not lie any copyright protection in information emanating out of a match
The match scores are in public domain and cannot be protected
The tort of unfair competition could not aid FreeSports in its effort to seek equitable
relief
There is no unjust enrichment as the benefit gained by Neptune is not at the expense of
FreeSports.
Using the name of MMBL in the advertisements of SuperDunk causes Trademark
dilution of a well-known trademark “Mordor Moonball Basketball League”.
Part IV
Aggrieved by this order, Moonshine and FreeSports filed an appeal in front of the Division
Bench. The Division Bench heard the parties on their grievances and decided the matter partly in
favour of Moonshine and FreeSports and partly in favour of Neptune. The Division Bench held
as follows:
With regard to the issue of copyright protection, the Division Bench upheld the view of
the Single Judge.
The match scores are not in public domain until they are broadcast on the television.
Therefore, Neptune can send match updates only after a 5 minute gap after it has been
broadcasted on the television.
Neptune has to pay 75 crores to Moonshine and FreeSports as damages because of unjust
enrichment gained by it.
With regard to the issue of Trademark dilution, Division Bench upheld the view of the
Single Judge.
Part V
Moonshine and FreeSports filed a Special Leave Petition (SLP) before the Supreme Court of
Mordor against the order of the Division Bench, High Court with respect to issues decided
against them. The Supreme Court admitted the SLP, and directed that the matter to be listed for
final hearing.
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STATEMENT OF ISSUES
I. Whether the information emanating out of the match is liable to copyright protection?
II. Whether FreeSports is entitled to equitable relief under tort of unfair protection and
whether Neptune has indulged in unfair competition, commercial misappropriation and
unjust commercial enrichment?
III. Whether using the name of MMBL in the advertisements of SuperDunk causes trademark
dilution?
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SUMMARY OF ARGUMENTS
ISSUE 1: THE INFORMATION EMANATING OUT OF THE MATCH IS LIABLE TO COPYRIGHT
PROTECTION.
The counsel on the behalf of the appellants humbly submits that Moonshine Ltd. has paramount
rights over MMBL and information emanating out of a match is protected under Copyright. This
is contended because Moonshine Ltd. has a copyright over the information emanating out of the
match, information emanating out of a match is not available in public domain and the use of
such information by Neptune Ltd. is in violation with the rights vested by the Copyright Act.
ISSUE 2: FREESPORTS IS ENTITLED TO EQUITABLE RELIEF UNDER TORT OF UNFAIR
PROTECTION AND NEPTUNE HAS INDULGED IN UNFAIR COMPETITION, COMMERCIAL
MISAPPROPRIATION AND UNJUST COMMERCIAL ENRICHMENT.
The counsel on the behalf of the appellants humbly submits that the Neptune Ltd. has unjustly
benefited at the expense of appellants by indulging in unfair competition, commercial
misappropriation and unjust commercial enrichment and thus, FreeSports Ltd. are entitled to
equitable relief under the tort of unfair protection.
ISSUE3: USING THE NAME OF MMBL IN THE ADVERTISEMENTS OF SUPERDUNK CAUSES
TRADEMARK DILUTION.
It is humbly submitted before this Hon’ble Court that using the name of MMBL in the
advertisements of SuperDunk causes Trademark dilution as “Mordor Moonball Basketball
League” is a well known trademark, and its unauthorized use leads to misrepresentation of
trademark which further results in trademark dilution and thus trademark infringement.
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ARGUMENTS ADVANCED
ISSUE 1: WHETHER THE INFORMATION EMANATING OUT OF THE MATCH IS LIABLE TO
COPYRIGHT PROTECTION?
The counsel on the behalf of the appellants humbly submits that Moonshine Ltd. has paramount
rights over MMBL and information emanating out of a match is protected under Copyright. This
is contended because Moonshine Ltd. has a copyright over the information emanating out of the
match (A), information emanating out of a match is not available in public domain (B) and the
use of such information by Neptune Ltd. is in violation with the rights vested by the Copyright
Act (C).
(A) Moonshine Ltd has a copyright over the information emanating out of match
Encouragement of intellectual creation, which is afforded through Copyright, is recognized as
one of the basic prerequisites of all social, economic and cultural development.2. In
Sulamangalam R. Jayalakshmi and Another v. Meta Musicals, Chennai and Others3, the Madras
High Court stated that “copyright law is to protect the fruit’s of a man’s work, labour, skill or test
from annexation by other people.” It is humbly submitted that Moonshine Ltd. has paramount
rights over all information emanating from the MMBL4 events as the organizer and promoter of
that sport in Mordor. Moonshine contends that they have by an agreement dated 05.08.2013
assigned a “bouquet of rights” exclusively to FreeSports Ltd. These included ‘recording’,
‘broadcasting’, ‘Mobile Rights’ and that the Neptune Ltd and Others had violated those rights
which were exclusively assigned to FreeSports Ltd. Neptune Ltd. had no license for such rights
from Moonshine Ltd. to disseminate match information. If any of the acts specified in Section 14
of the Indian Copyright Act relating to the work, is carried out by a person other than the owner
or without licence from the owner or a competent authority under the Act it constitutes
2 In Holy Faith International and Others v. Dr. Shiv K. Kumar, 2006 (33) PTC 456, 463 (AP), the court observed that the primary function of a copyright law is to protect the fruits of a man’s work, labour, skill or test from being taken away by other people. 3 2000 PTC 681, 6944 Mordor Moonball Basketball League, Pg 1, Factsheet.
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infringement of copyright. The type of acts, which will constitute infringement, will depend upon
the nature of the work. Secondary infringement such as making for sale or hire of, exhibition in
public by way of trade of, distribution - infringing copies - is also prohibited and punishable
under the Act.
A.1 FreeSports has exclusive rights regarding any information arising out of an MMBL
As the organizer of MMBL event in Mordor, Moonshine had exclusive rights in respect of
content generated during any such event according to the agreement dated 05.08.2013. These
included the right to commercially exploit all event content. Such rights were then transferred to
Freesports vide an agreement and hence it was the exclusive right of Freesports to control
‘mobile rights’ activities emanating out of the basketball event. Similarly, in the Marksman
Case5, the Pakistan Cricket Board (PCB) had assigned its exclusive 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. M/s.
VECTRACOM Pvt. Ltd., a company incorporated under the laws of Pakistan had entered into an
agreement with the PCB, dated 29.12.2005 with respect of SMS rights in India’s Tour of
Pakistan. 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. Relying on National Basketball Association
and NBA Properties Inc. v. Sports Team Analysis and Tracking Systems Inc. (“the NBA-1 Case”)
the High Court held that: “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.”
Similarly, in the instant case, Moonshine Ltd. as the owner of MMBL has all these rights which
have been further provided an exclusive license to Freesports Ltd by a “bouquet of rights” which
5 Marksman Marketing Services Pvt. Ltd. vs. Bharti Tele-Ventures Ltd. & Ors., O.A. No. 78/2006
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included recording, broadcasting, mobile rights, etc. Thus, Freesports has exclusive rights over
the information emanating out of MMBL.
A.2 Infringement of exclusive rights with the use of information emanating out of the
match by Neptune Ltd.
The Copyright Act creates several rights besides copyright. These rights include the rights of
broadcasting organisations under Section 37, the rights of performers under Sections 38 and
exclusive rights of the performer to make a sound recording or a visual recording which is
inclusive of any form of reproduction, issuance of copies, any form of communication to public
or any form of commercial rental or use or even broadcasting rights as specified under 38A, and
the moral rights of authors which are recognized under Section 576; which are all distinct from
copyright. Satellite broadcasting rights are treated as separate rights and the said rights are
recognized throughout the world as independent rights7. In the instant case, there is a clear
breach of these rights wherein exclusive rights of the performer i.e., Freesports with the vesting
of “bouquet of rights” vide an agreement which has a binding effect under Article 38-A sub
clause 2 of the Act. The exclusive right of an Organizer to monetize his own event need not find
its source in any statutory enactment, because it is a fundamental principle of equity as observed
in the INS Case8, "The underlying principle is much same as that which lies at the base of the
equitable theory of consideration in the law of trusts - that he, who has fairly paid the price,
should have the beneficial use of the property." In other cases regarding dissemination of content
through updates/alerts arising from sporting events, i.e. Pittsburgh Case9, and, National
Exhibition Case10; the decision in Twentieth Century Fox Case11. In all three cases, the Courts
followed the benefiting ratio in the INS Case. Hence, since Freesports acquired rights
exclusively, it is they who can exercise them and no one else. These precedents have great
persuasive value due to the similarity in the circumstances, especially with respect to minute-by-
minute updates being analogous to the ball-by-ball updates provided by the opposite party. Thus,
in the instant case the use of information emanating out of MMBL is an exclusive right vested
6 Indian Copyright Act, 19577 2008 (38) PTC 477 (Del.), AIR 2002 Del8 International News Service vs. Associated Press, 248 U.S. 215, 39 S.Ct. 68 (1918)9 Pittsburgh Athletic Co. et. al v. KQV Broadcasting Co., 24 F. Supp. 49010 National Exhibition Company vs. Martin Fass, 143 N.Y.S. 2d 76711 Twentieth Century Sporting Club Inc. and Ors vs. Transradio Press Service Inc. and Anr., 300 N.Y.S. 159
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over FreeSports Ltd via an agreement which is being infringed with the use of such information
by Neptune for broadcasting and advertisement purposes.
(B) The information emanating out of MMBL is not available in public domain
It is humbly submitted that it is in the best interest of the game of basketball in Mordor and
Moonshine Ltd. that such information permeates the public domain to its fullest extent however,
the owner and the performer have exclusive right provided over it and thus it is not the intention
of Moonshine to prevent Neptune from disseminating match information to the public, but to
ensure that Neptune share their revenue with Moonshine by obtaining a license for such
dissemination. Further, the time-sensitive nature of the information emanating from sporting
events with specific reference to score updates/match alerts has to be taken into consideration.
Match information does not completely enter public domain for a particular span of time. For
instance, a person who has access to television/radio will be updated about the status of a match
in real-time. Whereas, persons who do not have access to a television/radio, such as persons
inside office or even courtrooms may not be updated about match status contemporaneously.
The term “public domain” connotes that the information becoming freely available to the public,
it can be said that the information emanating from a match, enters the public domain at different
moments of time i.e. is becomes freely available to the public at different moments of time. To
elucidate through an example, the outcome of the first basket scored in a basketball match, enters
the public domain instantly qua the spectators in the stadium. The same information enters the
public domain after a delay of a few seconds (or micro-seconds) subject to the time-lag in
transmission of such information over a live telecast through television/radio. 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. Further, there is a great demand for
knowing minute by minute progress of a match as opposed to the match-summary at the end of
the match. This is evidenced by the fact that customers of such app services are willing to
download apps and use their data packs to follow such updates. The match information does not
enter public domain i.e. available to the public, the very instance it is broadcasted. It is similar to
saying that the plot of a book or movie has entered the public domain as soon as it is released.
Therefore, we humbly submit that match information has not entered ‘public domain’ i.e. is not
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readily available to the class of persons who do not have access to TV/radio, who also happen to
be the target consumers of the both the parties. Hence, it is our submission that since the
information emanating out of the match is not a part of public domain, the opposing party should
not be allowed to make free use of it. They should either stop using such information till it enters
the public domain which we content to be after thirty minutes or get proper licensing to be deal
with such information instantly.
C.The use of such information by Neptune Ltd. is in violation with the rights vested by the
Copyright Act
C.1 Malafide use of the garb of Constitutional Right to Receive Information by the
Public by Neptune Mordor
The Supreme Court has made it amply clear in cases such as Tata Press12 that the public’s right
to receive information is within the ambit of Article 19(1)(a) of the Constitution of India. The
Court held “Article 19(1)(a) not only guarantees freedom of speech and expression, it also
protects the rights of an individual to listen, read and receive the said speech”. The Courts have
held that the freedom of speech and expression was available to the press to disseminate such
information but a line has to be drawn in cases where the power is misused.
Finding that raising revenue under the garb of ‘reporting’ was not in consonance with the spirit
of Article 19(1)(a), the it was observed, "Thus, the cry in the media or the press, which we may
possibly hear tomorrow after our opinion is pronounced, that freedom of the media and the press
to disseminate information has been curtailed by us, if at all, is set at rest by us by noting that the
freedom of the press and the media to disseminate information was recognized by the society
keeping in view the press and the media which existed in the 19th and the 20th Century i.e. as
organs of thought, of empowerment, of culture and of refinement. Not as organs of entertainment
and revenue generation; least of all as an organ offering on its back, a piggy ride for commercial
entities i.e. business houses to advertise their products by commercializing the goodwill of
others.13" It is pertinent to note that, “news” or “noteworthy information” arising from a match is
very different from the ball-by-ball or minute-by-minute information. For instance, who made
12 (1995) 5 SCC 139 Tata Press Limited vs Mahanagar Telephone-Nigam Limited13 New Delhi Television Ltd v. ICC Development (International) Ltd. & Anr., FAO (OS) 460/2012 (NDTV Case)
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the first basket, whether any player received or took a penalty for the team, or a player
misbehaved, or a new world record being set constitutes" news in the realm of a basketball
match. To substantiate with an example, a news channel “reporting” such a match would not
engage in the contemporaneous dissemination of minute-by-minute match information. A news
channel would only report selective excerpts from the match which is news worthy.
It is amply clear that the dissemination of the minute-by-minute updates at a premium cannot be
exonerated under the freedom of speech and expression as guaranteed under Article 19(1)(a).
Meanwhile, all noteworthy information arising from a cricket match constitute “news”, and the
“reporting” of such noteworthy information would be protected under Article 19(1)(a).
C.2 Obtaining proper licence vis a vis Public Interest
The instant dispute is not between a commercial entity and the public, but between two
commercial entities and hence there is no substantial question of public policy. Further, the
public also cannot, as a matter of right, claim the access to contemporaneous score
updates/match alerts, equal to those who are enjoying rights at a premium, by buying the tickets
at the stadium or watching it live on TV. While recognizing the right of the general public to
have score updates/match alerts at their convenience on mobile phones via apps, Neptune should
either obtain a license and gain equal rights to Freesports, or make them wait for a considerable
time in order to not prejudice the right of Freesports to earn revenue from the match information.
It is gathered that, as it is, about 3-5 minutes are taken for gathering, compiling and
disseminating the score updates/match alerts by the defendants. In such a circumstance, those
who do not obtain a license, should not disseminate the score update/match alert before 30
minutes from the moment such score update/match alert is telecasted/broadcasted by the
Freesports. Thus, this maintains a balance between our right to monetize the match and the right
of the public to receive such information, and also prevents the others from free-riding on our
efforts.
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ISSUE 2: WHETHER FREESPORTS IS ENTITLED TO EQUITABLE RELIEF UNDER TORT OF
UNFAIR PROTECTION AND NEPTUNE HAS NOT INDULGED IN UNFAIR COMPETITION
COMMERCIAL MISAPPROPRIATION AND UNJUST COMMERCIAL ENRICHMENT?
The counsel on the behalf of the appellants humbly submits that the Neptune Ltd. has unjustly
benefited at the expense of appellants by indulging in unfair competition, commercial
misappropriation and unjust commercial enrichment (A) and thus, FreeSports Ltd. are entitled to
equitable relief under the tort of unfair protection (B).
(A)The Neptune Ltd. has unjustly benefited at the expense of appellants by indulging in unfair
competition, commercial misappropriation and unjust commercial enrichment
A.1 Unfair Competition
Unfair competition is a sequel to free competition in the economy. It is an intellectual concept. In
a free market economy, competition is a basic policy in relation to trade and business. However,
competition must not only be free but also fair. Unfair competition is a commercial tort. It is well
established that any act or conduct, which confuses or tends to confuse the public mind in
relation to the identity of the plaintiff or his products is a violation of the plaintiff’s rights. Unfair
competition law enforces increasingly high standards of fairness or commercial morality in trade.
This concept have been applied in the case of International News Service v. Associated
Press14(INS Case) it was held that “the defendants acts of taking material acquired by the skill,
organization 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
underlined principle behind the tort of unfair competition is that a he who has fairly paid the
price should have the beneficial use of the property.”
In the instant case the FreeSports Ltd., a national television channel was given the exclusive right
of recording and broadcasting the basketball match information along with the mobile rights.
However, Neptune Ltd., a telecommunication company provided the minute-by-minute updates
14 248 U.S. 215, 39 S. Ct. 68 (1918)e
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of the match through its application called Superdunk. By this it roped in big advertisers like
Pepsi, Nike, McDonalds etc. and started making huge profit at the cost of appellant’s expense.
This constitutes unfair competition.
A.2 Commercial Misappropriation & Unjust Enrichment
In law, commercial misappropriation is the unauthorized use of another's name, likeness, or
identity without that person's permission, resulting in harm to that person and unjust
enrichment is where one person is unjustly or by chance enriched at the expense of another, and
an obligation to make restitution arises, regardless of liability for wrongdoing.
Further it is pertinent that the principle of unfair competition and commercial misappropriation
enunciated in the INS case was followed in the respective cases:
In the case of Pittsburgh Athletic Co. et al v. KQV Broadcasting Co.15 (Pittsburgh Case), the
plaintiff prayed for a preliminary injunction to restrain the defendants from defendants from
broadcasting play-by-play reports and description of baseball games played by the plaintiff’s
baseball team.
In the case of National Exhibition Company v. Martin Fass16 the SC was faced with the prayer
for injunction against the defendants who were listening to the broadcast of play-by-play
descriptions of baseball games organized by the plaintiff and sending out simultaneous teletype
reports of the games to radio stations for immediate broadcast.
In the case of Twentieth Century Sporting Club Inc. and Ors. v. Transradio Press Service Inc.
and Anr.17 The court was faced with a prayer for injunction against the defendants from
interfering with exclusive right of the plaintiff to broadcast a description of certain boxing
exhibition.
In the present case, the appellants had the exclusive rights in relation to the content generated
during the basketball event, including the right to commercially exploit all content arising from
such event. Moreover, the respondents have unduly taken away into the mobile rights along with
15 24 F. Supp. 49016 143 N.Y.S. 2d 76717 300 N.Y.S. 159
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the broadcasting rights, without sharing the profit gained by them, thereby indulging in unfair
competition and unjust commercial enrichment.
Further, it has been held in the case of National Basket ball Association and NBA Properties v.
Sports Team Analysis and Tracking Systems Inc.18 it was held that "the right of providing scores,
alerts and updates is the result of labour and money of the organisers and so the same is saleable
only by them. The sending of score updates and match alerts amounts to interference with the
normal operation of the organisers business. The defendants 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." These precedents have a high persuasive value due to the
similarity in the factual matrix, specifically with respect to play-by-play updates or ball-by-ball
minutes provided by the defendants.
Similarly, in the instant case, Moonshine Ltd. has spent substantial amount of money19 over the
advertisements and setting up sport managers and the requisite teams at the time of initiation of
tournament. Further, the rights in relation to broadcasting are essentially vested with the owner
which further have been provided to Freesports Ltd. vide an agreement20. However, Neptune Ltd.
without any license provided by the owner has been unduly exercising these rights by providing
minute by minute updates21 of the match.
Also, in the case of Marksman Marketing Services Pvt. Ltd. v. Bharti Tele-Ventures Ltd. &
Ors.22, the plaintiff prayed for an injunction under Section 55 and 6123 restraining the defendants
from disseminating information relating to scores through mobile phones. Thus, in the present
case the dissemination of match information through minute-by-minute match updates of MMBL
i.e. Mordor Moonball Basketball League by the defendants constitutes the tort of unfair
competition and a commercial misappropriation/unjust commercial enrichment. The defendants
ere neither assigned any rights nor acquired any license to from the plaintiffs to disseminate any
match information. The plaintiff seeks a remedy in these suits under common law, de hors the
18 939 F. Supp 107119 Factsheet para 3 at 120 Factsheet para 4 at 121 Factsheet para 5 at 222 O.A. No. 78/200623 Copyright Act, 1957
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Copyright Act, 1957. In the present case the intention of plaintiff is not to prevent the defendants
from disseminating any match information to the public but to ensure that the defendants share
their revenue with the plaintiff by obtaining a license for such information.
Further, in response to the argument regarding match information already being in public
domain, the emphasis is laid upon the time- sensitive nature of the information emanating from
cricketing/boxing/ basketball events with specific reference to score updates/match alerts. It is
argued that the match information does not completely enter public domain for a particular span
of time. For instance, a person who has access to television/radio will be updated about the status
of a cricket match in real-time, whereas, persons who do not have access to a television/radio,
such as persons inside office or even courtrooms may not be updated about match status
contemporaneously.
( B ) Freesports Ltd. are entitled to equitable relief under the tort of unfair competition
The appellants has approached this Court to find a remedy in common law against the tort of
unfair competition and does not seek a creation of copyright or a similar right from this Court. It
is submitted that since the respondents have indulged into commercial misappropriation and
unjust enrichment and thus leading to the tort of unfair competition, this provides effective
means to the appellant’s rights against the undue benefits of the respondents at the cost of
appellant.
In the case of Mahabir Kishore & Ors v. State of Madhya Pradesh24 the Apex Court has
observed that the Courts in England have formulated the doctrine of unjust enrichment in certain
situations where it would be unjust to allow the defendant to retain a benefit at the plaintiff’s
expense. The Court held, "The principle of unjust enrichment requires; first, that the defendant
has been 'enriched' by the receipt of a "benefit" and secondly, that the enrichment is "at the
expense of the plaintiff" and thirdly, that the retention of the enrichment be unjust. Enrichment
may take the form of direct advantage to the recipient wealth such as by the receipt of money or
indirect one for instance where inevitable expense has been saved."
It is observed in the present case that the FreeSports Pvt. Ltd. is only seeking the declaration of a
24 1989 SCR (3) 596
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right to generate revenue by monetizing the information arising from an event, which has been
conceptualized, developed, created and organised by the sole efforts and expenditure of
Moonshine Mordor Pvt. Ltd; as its assignee. Admittedly, in order to monetize the expense, effort
and skill employed in organising cricket matches in Mordor, the plaintiff (Moonshine Mordor
Pvt. Ltd) assigned exclusive rights such as recording rights, broadcasting rights, and mobile
rights for the basket ball event to the plaintiff but the defendants violated the same by providing
minute-by-minute updates of the match without paying for it or obtaining the license. Thus, it
has unjustly enriched or made profit by disseminating the match information on the application
Superdunk when the plaintiff made all the efforts of compilation etc. Applying the test of unjust
enrichment as observed in the Mahabir Kishore case, it is amply clear that the defendants are
enriching themselves at the cost of the plaintiff.
In the case of Star India Pvt. Ltd and Anr. v. Haneet Ujwal and Ors.25 , the plaintiff’s prayed for
permanent injunction as substantial investments had been made by the plaintiffs in acquisition of
the exclusive rights for the 2014 India-England Series. Also significant expenses were incurred
by the plaintiff in setting-up the infrastructure of STARSPORTS.COM internet and mobile
service (video player, internet bandwidth etc.), advertising, promoting and broadcasting the
series matches on the internet and mobile. Bearing in mind that the Rogue Websites do not make
any investments in acquisition of the exclusive rights for the 2014 India-England Series nor do
they take any efforts in legalizing their infringing activity despite repeated reminders and legal
notices, the Rogue Websites are misappropriating and unfairly competing with the plaintiffs by
seeking to reap what they have not sown. The plaintiff’s were entitled to protection against such
unfair competition and commercial misappropriation by the Rogue Websites and dilution and
erosion of its valuable intellectual property rights.
The contemporaneous dissemination of score updates/match alerts, without payment, but en-
cashing the labour and expenditure of the plaintiff would amounts unjust commercial
enrichment, which would not be fair on the part of the defendants. To reiterate again, if the
defendants are doing so gratuitously, then they enjoy the absolute right of transmission,
25 CS(OS) No.2243/2014
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contemporaneously with respect to the telecast/broadcast of the plaintiff, because there is no
instance of free-riding or unjust commercial enrichment in such a circumstance. by free-riding
upon the efforts of the plaintiff, the defendants are eating into the revenue which the plaintiff
would have made, thereby causing the plaintiff irreparable injury.
The respondents while having their fundamental right of trade and free speech, including the
dissemination of match information to the public, cannot be permitted to have a free ride or reap
what they have not sown. The respondents have caused commercial misappropriation and
benefitted unjustly at the expense of the appellants and thus FreeSports Ltd. is liable to equitable
relief under the tort of unfair competition.
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ISSUE 3: WHETHER USING THE NAME OF INDIA MOONBALL BASKETBALL LEAGUE IN THE
ADVERTISEMENTS OF SUPERDUNK CAUSES TRADEMARK DILUTION?
The counsel on the behalf of appellants humbly submits before this Hon’ble Court that using the
name of MMBL in the advertisements of SuperDunk causes Trademark dilution as “India
Moonball Basketball League” is a well known trademark(A), and its unauthorized use leads to
misrepresentation of trademark (B) which further results in trademark dilution and thus
trademark infringement (C).
(A) MMBL is a well-known trademark
The Indian Trademark Law accords extraordinary protection to trade marks that are well known
and safeguard them from the vices of infringement or passing off. The Indian Intellectual
Property Office recognizes well-known trademarks in India on the basis of their international,
national and cross border reputation. As per the Indian Trademarks Act, 1999 a well known
trademark is one which includes the following essentials:
Known to the substantial segment of the public which uses such goods or receives such
services
that the use of such mark in relation to other goods or services
would be likely to be taken as indicating a connection in the course of trade or rendering
of services
between those goods or services and a person using the mark in relation to the first
mentioned goods or services.26
In the instant case, Moonshine Ltd. has launched a tournament27 under the name of the trademark
“India Moonball Basketball League (MMBL)” is in its fourth edition and gained popularity28.
Thus, MMBL comprises of all the aforesaid essentials.
26 As per Section2(1)(zg) of the Indian Trademarks Act, 199927 Factsheet para 3 at 1.28 Factsheet para 4 at 1.
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In determining as to well-known status of a trademark, in addition to section11(6) and (7) the
opinion of the court whether the trademark is well known in any relevant section of the public in
India is important.29 Further, while determining as to whether a trade mark is known or
recognized in a relevant section of the public for the purpose of Sec 11(6), take into account-
the number of actual or potential consumers of the goods or services;
the number of persons involved in the channels of distribution of the goods or services;
the business circles dealing with the goods or services, to which that trade mark
applies.30
Herein, the trademark MMBL has been associated with a tournament31 which is gained
popularity and millions of mobile users have started downloading application related to this
tournament32. This makes the trademark satisfy the aforesaid conditions.
Moreover, it would be a finding of fact by the court that mark is well known, for determination
of which it may keep in mind the factors emanating from the definition in Section2(1)(zg). That
if such a trademark is used on different or non-competiting goods or services, it would indicate
to the consuming public as if it is mark of the same person who has been using it on some other
goods or services of which they are aware. Since, the trademark MMBL is a mark for tournament
and gaining popularity and being followed by millions of users33, it is a well-known trademark.
Further, Single Judge bench34 in its decision have identified MMBL as a well-known trademark.
(B) Misrepresentation with the help of Trademark
False representation of business connection which has sometimes come before the courts is
where the defendant has pretended to be agent for the sale of the claimant’s goods.35 The sale of
the goods that are identical to genuine authorized products but that were manufactured without
the authorization of the trademark owner constituted passing off unless and until the trademark
owner adopted the goods, taking responsibility for their quality and origin.36
29 As per section 11(8) of the Act.30 Sec. 11 (7) of the TMA, 199931 Factsheet para 3 at 132 Factsheet para 5 at 2.33 Ibid34 Factsheet para 8 at 2.35 The Linden Singers; Galer v. Walls, The Times, Aug 2, 196436 Primark Stores ltd. v. Lollypopclothing ltd (2002) FSR 60
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Actions based on direct misrepresentation are comparatively rare. The claimant’s case more
commonly is that the defendant has copied or imitated the trading name, trademark, the get up,
are specifically concerned. Where the charge is one of indirect misrepresentation of this sort the
case is unusually based on alterations that (a) a mark, get up., is distinctive of the claimants
goods exclusively that (b) the defendants has used the mark or get up or an imitation so close as
to likely deceive. It may be fallacious to treat the two allegations as propositions namely that the
defendant’s conduct is likely to lead to passing off.37 Nevertheless the claimant must establish on
the one hand that badge of trade concerned has been used for goods or a business that are not
his or at least that has no right to the badge, so as to be recommended by it.38
In Caterpillar Inc. v. Mehtab Ahmed39, the defendants had copied totally the trade marks ‘cat’
and ‘caterpillar’ which had become the world famous in relation to footwear of the plaintiffs and
its reputation had crossed over into India. Permanent injunction was granted.
In the instant case, the trademark “India Moonball Basketball League (MMBL)” is in its fourth
edition and gained popularity and a lot of television channels were trying to get broadcasting
rights for the same40. These “bouquet of rights”41 were subsequently bagged by Freesports Ltd.
Seeing this potential, Neptune Ltd. under the name of SuperDunk had provided minute-by-
minute details of the tournament and has also used the name of MMBL in its advertisements
along with pictures of prominent players involved in the tournament.42 Thus, the respondents
have used identical mark or rather have imitated the trademark which provides false
representation regarding the business relations .
(C) Dilution of Trademark
Dilution or association of an earlier trade mark by use of another mark is comparatively a new
area in India. It has been popular in the USA for the redress against dilution and has found its
way in the 1999Act both, as a ground of opposition registration of a later trademark and has been
recognized as a ground for infringement by such later trade mark. Dilution is different
37 Magnolia Metal v. Tanden Smelting (1900) 17 RPC 477 at 486, office cleaning v. Westminster (1946) 63 RPC 39 at 4238 Turmix, oertli v. bowman (1957) RPC 388 at 39739 2002 (25)PTC 438 (Del) at 44240 Factsheet para 4 at 1.41 Ibid42 Factsheet para 5, at 2.
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proposition than deceptive or confusing similarity as it is related with lowering the value of
earlier trade mark. If the exclusivity of earlier trademark gets lowered, the mark is said to be
diluted. In India there has been a lot of impetus to doctrine of dilution. One of the results for
successful opposition under Sec. 11(1) is likelihood of associating later mark with the earlier
mark. If the public shall associate or are likely to associate subsequent or junior mark with the
earlier or senior mark, it is a new ground for opposition to registration as the Doctrine of
Dilution.
The thrust in dilution is not the confusion would result but the image of trade marking the minds
of public would be diluted irrespective of whether there is confusion in the public mind. It’s
underlying objective is that there is presumption that the relevant customers start associating the
trade mark with a new and different source which results in smearing or partially affecting the
descriptive link between trademark of the prior use and its goods i.e., the link between the mark
and the food is blurred. It amounts not only reducing the force or value of the trademark but also
it gradually tapers the commercial value of the trade mark slice by slice. Such kind of dilution is
not a fair trade practice that is expected in trade and commerce.43
The European court of justice in Cannon Kabushiki Kaisha v. MGM44, wherein Art. 4(1)(b) of
EC Directive which provides for “a likelihood of confusion on the part of the public, which
includes the likelihood of association with the earlier trademark”. The court explained the 3
circumstances which can be made out as a likelihood of association with the earlier mark:
1. when the public confuses the sign and the mark in question
2. when the public makes a connection between the proprietor of the sign and those of a
mark and confuses them
3. when the public considers the sign to be similar to the mark and perception of the sign
calls to mind the memory of the mark, although the two are not confused
In this case, the court held that “the result of their analogous semantic content is not itself a
sufficient ground for concluding that there is a likelihood of confusion.”
43 Caterpillar Inc. v. Mehtab Ahmed, 2002 (25) PTC 440 (Del )44 (1999) RPC 117
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The IPAC and the courts show tendency not to allow the copy of or imitation of the get up or
trade dress, even when there is no phonetic similarity of the trade mark; even if the
trademarks are poles apart in the sound or spoken part of it and injunction it still issued.45
If a proprietor of a later mark or junior use structures his affairs in such a manner as to take
advantage of another mark, it is considered unfair and the advantage would always be deemed to
be without cause both under Section 11(2) and Section 29(4) of the 1999 Act. The Court, while
referring to section 29 (4) of the Trade Marks Act, 1999 (the Act), recognized the essentials for
dilution as under:
(1) The impugned mark must be identical or similar to the injured mark;
(2) The one claiming injury due to dilution must prove that her/his mark has a reputation in
India;
(3) The use of the impugned mark is without due cause;
(4) The use of the impugned mark (amounts to) taking unfair advantage of or is detrimental to,
the distinctive character or repute of the registered trade mark.
In Marage Studies v. Counter Feat Clothing Co. Ltd. case reported in (1991) FSR 145, where
Browne Wilkison V−C said that the so-called requirement of the law that there should be a
common field of activity is now discredited. The real question in each case is whether there is as
a result of misrepresentation a real likelihood of confusion or deception of the public and
consequent damage to the plaintiff. The focus is shifted from the external objective test of
making comparison of activities of parties to the state of mind of public in deciding whether it
will be confused. Further, in the case of Intel Corporation v. S. Ramanan Director and Anr.,
(Chennai High Court, OA 276 of 2002) it has been held that “simply because the name of the
respondents was registered earlier in point of time, it cannot be said that they have got prima
facie case. The trade name INTEL has been coined by the applicant and they have widely used
the same for a very long time. No doubt, the trade name of the respondents is INTELTOOLS;
but by this, it cannot be said that they are entitled to use the same. The products manufactured by
the applicant company are marketed under the trade name INTEL and if the same name is used
45 The case of Coalgate to ANCHOR tooth paste may be seen.
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by the respondents also there is very possibility for deception and confusion in the minds of the
public. Apart from that, although the products manufactured by the respondents are a different
one from the products manufactured by the applicant, the trade public will be misled and the
product of the respondents would be misunderstood as the product of the applicant.”
Dilution of Trademark can take place by two mechanisms: Blurring and Tarnishment. Blurring
means erosion or watering done of “distinctiveness, uniqueness, effectiveness and prestigious
connotations of the trade mark.” It is to be noted that dilution by blurring happens upon
unauthorized use of famous mark for unrelated or dissimilar goods/ services. Tarnishment means
“weakening of a mark through unsavoury or unflattering associations.”
Whenever the nature of dilution, whether by blurring or tarnishment it is clear that proof of
actual dilution not just likelihood of dilution is required. However, to some extent, this
requirement of proof depends on whether the conflicting marks are identical or otherwise.
Plaintiff must prove dilution by blurring or tarnishment of non-identical trademark in order to
succeed and a mere claim that customers associate or likely to associate the junior marks with the
senior one would not suffice the actionable dilution. In Mosely v. Secret Catalogue Inc.46 (victors
secret and retail store victoria’s secret)the court observed that “at least where the marks at issue
are not identical the mere fact that consumers mentally associate the junior user’s mark with a
famous mark is not sufficient evidence to prove actual dilution to establish actionable dilution”
The clear identification of this holding is that where the marks are identical the mere fact that
customers mentally associate the juniors user’s mark with a famous mark could be sufficient to
establish dilution.
In the instant case, Neptune Ltd. under the name of SuperDunk had provided minute-by-minute
details of the tournament and has also used the name of MMBL (which is an earlier mark used to
represent tournaments launched by Moonshine47) in its advertisements along with pictures of
prominent players involved in the tournament.48 Thus, the marks issues are completely identical
and junior mark is seen as a clear imitation of the earlier one which makes a complete
association with the tournament. However, the rights with respect to broadcasting and other
46 537 us 418 (2003)47 Factsheet para 3 oat 1.48 Factsheet para 5, at 2.
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bouquet of rights49 are vested with Freesports Ltd. by the appellant. Thus, respondents have
unauthorizely used the trademark MMBL by blurring the relation between the goods and the
mark in terms of business relationship. This has further caused confusion in the minds of
consumers also.
Further a dilution action is usually available where there is no likelihood of confusion in absence
of competition. It is applied when there is an erosion of the communication or advertising
function of a trademark.50 The advertising function of a mark is reflected in the ability of the
mark to call to mind the specific product and to envoke association of satisfaction and
desirability for that product. The damage inflicted on the advertising function results in its loss of
exclusivity.
In the instant case with the use of the trademark MMBL along with pictures of prominent players
involved in the tournament51 in the advertisements of SuperDunk launched by Neptune Ltd.
have caused a confusion in the minds of the consumers and further caused damage to
Moonshine Ltd. and Freesprots Ltd. thus causing a loss of exclusivity of the mark.
Thus, in light of the aforementioned reasons, it is humbly submitted that using the name of
MMBL in the advertisements of SuperDunk causes Trademark dilution.
49 Factsheet para 4 at 1.50 Fredrick W. M ostert, Famouse and well known trademarks, Buuterworths, 1997, 56; NS Gopalkrishnan & T.G. Agistha, Principles of IPR, Eastern Book Co. p. 513 1st Ed.(2009)51 Factsheet para 5, at 2.
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PRAYER
WHEREFORE, in light of the issues raised, arguments advanced and authorities cited it is most
humbly and respectfully requested that this Hon’ble Supreme Court of India to adjudge and
declare on behalf of Appellants that: declare on behalf of Appellants that:
1. There does lie a copyright protection in information emanating out of a match and the
match scores are not in public domain and thus can be protected.
2. Freesports should be allowed to seek equitable relief through tort of unfair competition
and thus Neptune is liable for unjust enrichment
3. Using the name of MMBL in the advertisements of SuperDunk causes Trademark
dilution of a well known trademark “MMBL” and thus this results in trademark
infringement.
4. Provide for a permanent injunction over SuperDunk from using any information
emanating out of MMBL and using the name of MMBL and photographs of its prominent
players in its advertisements.
The court may also be pleased to pass any other order, which this Hon’ble Court may deem
fit in light of justice, equity and good conscience. All of which is respectfully submitted on
behalf of
The Appellants
Sd/-
..............................
(Counsel for the “Appellants’”)
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