C.S. No. 284 of 2011. Case: Tamanna Santhosh Bhatia Vs Power Soaps Limited and Ors.. High Court of Madras (India)
| Case Number | C.S. No. 284 of 2011 |
| Counsel | For Appellant: V. Manohar, Adv. and For Respondents: K. Rajasekaran, Adv. |
| Judges | T. Ravindran, J. |
| Issue | Media and Communication Law |
| Judgement Date | April 07, 2017 |
| Court | High Court of Madras (India) |
Judgment:
T. Ravindran, J.
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The suit is laid by the plaintiff for damages and permanent injunction.
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The averments contained in the plaint are briefly stated as follows:
The plaintiff is a renowned and popular multi lingual actress and has acted in many popular films and has vast and wide range of fan following. Her profile has high potential value in the current film as well as in the advertisement fields. The defendants approached the plaintiff for promoting the sale of the first defendant's products by appearing as their brand ambassador. In order to utilize her popularity and commercial value attached to the presence of the plaintiff, the defendants offered a honorarium and based upon the discussions, an agreement dated 07.10.2008 was entered into between the plaintiff and the first defendant in the presence of the second defendant and the said agreement was to have effect only for one year, i.e. till 06.10.2009. As per the agreement, the photo shoots of the plaintiff to promote the products of the first defendant had been taken and on account of the plaintiff's presence in the advertisement of the first defendant products, there has been quantum increases many fold of the products of the first defendant and considering the increase in the volume of business of the first defendant, they expressed their intention to continue the agreement for further periods, but the plaintiff refused to give her consent to the same. After the expiry of the above said agreement, the first defendant has no right or consent from the plaintiff to use her appearance in their products or advertisements. However, subsequent to the expiry of the above said agreement, when the plaintiff was approached by M/s. Wipro Ltd. (Consumer Care and Lighting Division) to promote their products (soaps etc.) and the negotiations, with reference to the same, were going on during the last quarter of 2010, to shock and surprise of the plaintiff, it was brought to her knowledge that the first defendant, who is the competitor of M/s. Wipro Ltd., is using the plaintiff's videos and photos for promotion and thereby, exploiting the presence of the plaintiff illegally. Immediately, the plaintiff warned the first defendant orally and the matter was also taken up through the 2nd defendant, who is their authorized agent. Despite the said warnings, the first defendant continued to project the plaintiff's appearance in the commercials of the first defendant in a clandestine manner through multiple channels, materials published in journals and the wrappers used in their products, carried the presence of the plaintiff's photos/profiles and in particular, the soaps manufactured during November 2010 & February 2011. The plaintiff had been thereby put to disadvantage with her other commercials endeavors. Inasmuch as the first defendant did not respond to the oral warnings, the plaintiff issued a notice to the first defendant on 18.01.2011 complaining about the violations and misdeeds committed by them. Again, the plaintiff issued another notice on 01.02.2011 complaining the breach committed by the first defendant. The first defendant gave an evasive reply on 09.02.2011 making untenable allegations and falsely contended that they are not responsible for the exploitations of the plaintiff's appearance in their products. Inasmuch as the first defendant did not mend their way and has continued with exploitation of the plaintiff photo\profile in their commercials and been making unlawful use of the popularity of the plaintiff to their advantage and inasmuch as the plaintiff has also to suffer in her subsequent commercial endeavours with other business concerns, as regards the advertisement fields and as the act of the defendants amounts to invading the privilege and personal right of the plaintiff and despite notices, the first defendant did not take steps to make any corrective measures on their part, the plaintiff has been constrained to lay the suit for adequate compensation and damages in a sum of Rs. 1 crore and also for consequential permanent injunction.
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The averments in the written statement filed by the first defendant are briefly stated as follows:-
The suit is not maintainable either in law or on facts and except the facts that are admitted by the defendant, as regards the other averments in the plaint, the plaintiff is put to strict proof of the same. The plaintiff is not a popular film personality as averred in the plaint and the plaintiff was paid Rs. 1,00,000/- per year as per the agreement entered into on 07.10.2008 and the said agreement was not entered before the second defendant and the agreement was negotiated by an intermediary known as N.D. Communication Private Limited and not J & D Communication Private limited. The plaint, thus, suffer from vice of non-joinder of necessary party and mis-joinder of party. The plaintiff has permitted and given consent to the first defendant in using her photographs for promotion trade mark related registration in India and Abroad under the above said agreement. It is false to state that on account of the plaintiff's presence in the advertisements of the first defendant's products, there has been increase in the business manifold as regards the products of the first defendant. The first defendant's products are well received in the market due to the quality of their products and every year, there is an increase in their business irrespective of the picture of the actors. The plaintiff cannot claim any credit for increase in the business of the first defendant. The defendant is not aware of the negotiations of the plaintiff with M/s. Wipro limited, which is a small player compared to the first defendant and not a competitor to the first defendant. With regard to the allegations that the first defendant advertising the product with the plaintiff's picture are absolutely false and the first defendant had given instructions to their advertisement associates and agents not to use the pictures of the plaintiff...
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