{"id":51255,"date":"2020-10-06T09:02:22","date_gmt":"2020-10-06T09:02:22","guid":{"rendered":"https:\/\/www.cryptocabaret.com\/?p=51255"},"modified":"2020-10-06T09:02:22","modified_gmt":"2020-10-06T09:02:22","slug":"plex-denied-early-injunction-to-prevent-streaming-service-using-its-name","status":"publish","type":"post","link":"https:\/\/www.cryptocabaret.com\/?p=51255","title":{"rendered":"Plex Denied Early Injunction to Prevent Streaming Service Using its Name"},"content":{"rendered":"

\"Plex\"<\/a>Early September, Indian media company Zee Entertainment Enterprises revealed it would soon launch a brand new streaming service with the aim of premiering blockbuster movies directly to people\u2019s homes, partly to combat piracy.<\/p>\n

Initially reported as the \u2018Zee Plex\u2019 service, the product was set for launch last Friday, October 2, 2020. However, the news didn\u2019t sit well with US-based Plex, Inc., the operator of the famous Plex media server software.<\/p>\n

According to Plex, Inc., Zee Plex operator Zee Entertainment Enterprises\u2019 choice of name meant that its new service would be illegally trading off the hard-earned goodwill of the Plex trademark. Describing Zee Plex as a \u201ccompeting service\u201d, Plex Inc. took legal action<\/a> to urgently obtain an injunction to prevent the service launching with the infringing mark.<\/p>\n

Ad-Interim Application for Injunction<\/h2>\n

Zee Plex launched as planned October 2, 2020, but not before the matter was heard by the High Court in Bombay via video conferencing just a day earlier.<\/p>\n

The Court heard that Zee Entertainment is a large multi-media conglomerate providing entertainment across a broad range of platforms including the Internet, OTT, satellite and cable. It was acknowledged that Plex Inc. had adopted the Plex trademark in May 2008 in the United States for a software\/hardware service that allows a user to take content \u201cwherever he goes\u201d.<\/p>\n

Plex told the Court that it signed up its first Indian user back in July 2008 and now has 550,000 users and \u201cvery high sales\u201d in the country. <\/p>\n

The Court questioned that, noting that evidence pointed to sales of between US$24,000 to US$30,000. This is important because the volume of domestic business can be used as a factor when considering the value of existing goodwill and reputation.<\/p>\n

Court Failed to See Similarities Between Plex and Zee Plex<\/h2>\n

In the decision handed down on October 1, 2020, the Court found that on first view, the Plex media server and Zee Plex were \u201cfundamentally different\u201d. Noting that Zee Plex is a \u201ccinema-to-home pay-per-view movie service\u201d and that Plex carries some of its own \u201ccurated content\u201d, the Zee Plex service does not have any of the \u201ctake your own content with you\u201d services offered by Plex.<\/p>\n

At this point it\u2019s worth highlighting that Zee says that its service is actually called ZEEPLEX, i.e one word instead of two. According to the Court, this doesn\u2019t amount to much since Plex objects to the word \u2018Plex\u2019 being used in any way but from here things didn\u2019t get any better for Plex.<\/p>\n

No Prima Facie Case of \u2018Passing Off\u2019<\/h2>\n

The Court notes that Plex\u2019s case is based on allegations of deceit by Zee Entertainment, in that it used the Plex name to dupe or mislead consumers into thinking it had somehow tied up with Plex in business. To show such a case, Plex must demonstrate strong reputation and brand recognition in India among consumers but the Court found that, on the surface, the balance tips away from the US-based company.<\/p>\n

\u201cI do not yet see sufficient material from Plex to be able to establish its reputation at least within India, whatever may be its reputation, registrations and sales in other jurisdictions. In contract, there is the much greater reputation and standing of Zee amongst subscribers across the length and the breadth of the country with a large number of channels in various languages,\u201d the judge\u2019s order reads.<\/p>\n

Equally, arguments by Plex that it should receive the same kinds of protection enjoyed by companies such as Sony, Disney or Hotstar, were also dismissed by the Court.<\/p>\n

\u201cMerely pointing to other established and reputed players in the field is not enough, and it is hardly a credible argument to say that \u2018if Sony provides content and has a reputation, since I, too, provide content, I must be presumed to have an equivalent reputation. So if Sony could maintain such an action and get an order, so must I.\u2019 <\/p>\n

\u201cThere is no one-size-fits-all approach in these matters. Every claimant in a passing off action stands or falls on his own merits and case,\u201d the order adds.<\/p>\n

Issues With Plex Trademark in India<\/h2>\n

The Court notes that while Plex has registered trademarks in several jurisdictions, those locations do not include India. The Court adds that when the ZEEPLEX service was announced in September, Plex had applied for but not obtained a trademark registration. However, after the announcement, Plex reportedly went to the registry to make an amendment that indicated that it was proposed to be used back in 2008.<\/p>\n

\u201cIn other words, until it moved the amendment application, its own case in the registry was that at least in India, its mark was not in use, but only had a proposed or anticipated user,\u201d the order notes.<\/p>\n

Judge Apparently Irritated By Last Minute Injunction Demands<\/h2>\n

While the Court heard the matter in advance of the ZEEPLEX service\u2019s launch, the judge appears to be irritated by companies in intellectual property disputes expecting courts to deal with their cases quickly and at the expense of other matters.<\/p>\n

\u201c[I] have said this before \u2014 that parties in IPR matters cannot expect Courts to push aside all other cases. This happens repeatedly, whether it is movie releases or otherwise. It must stop,\u201d the judge writes in his order.<\/p>\n

\u201cIt is unfair to courts and it is unfair to other litigants waiting their turn. Where a plaintiff has had enough notice and yet chooses to move at the eleventh hour \u2014 and makes no allowance at all for any adjustment that may be required \u2014 the plaintiff must be prepared to face the consequences.\u201d <\/p>\n

Plex Injunction Application Fails At This Stage<\/h2>\n

In considering whether to grant an early injunction, the Court weighed several factors but ultimately sided with Zee Entertainment. According to the judge, Plex has no prima facie case, cannot show anticipated injury, and its userbase in India is too small to show that Zee tried to pass off its new channel as being in association with Plex.<\/p>\n

\u201cThe grant of the injunction Plex seeks would, on the other, cause immense and immediate financial loss and harm to Zee. Consequently, I find no reason to grant an ad interim injunction in this passing off action,\u201d the order concludes.<\/p>\n

While Plex didn\u2019t immediately get the result it had hoped for, the matter isn\u2019t completely over yet. Plex has been granted leave to amend and will be hoping for a different result.<\/p>\n

The order handed down by the High Court of Bombay can be found here<\/a> (pdf)<\/em><\/p>\n

From: TF<\/a>, for the latest news on copyright battles, piracy and more.<\/p>\n

Powered by WPeMatico<\/a><\/small><\/p>\n","protected":false},"excerpt":{"rendered":"

Early September, Indian media company Zee Entertainment Enterprises revealed it would soon launch a brand new streaming service with the aim of premiering blockbuster movies directly to people\u2019s homes, partly to combat piracy. Initially reported as the \u2018Zee Plex\u2019 service, the product was set for launch last Friday, October 2, 2020. However, the news didn\u2019t […]<\/p>\n","protected":false},"author":2,"featured_media":51256,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[308],"tags":[],"class_list":["post-51255","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-torrent"],"_links":{"self":[{"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=\/wp\/v2\/posts\/51255","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=51255"}],"version-history":[{"count":0,"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=\/wp\/v2\/posts\/51255\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=\/wp\/v2\/media\/51256"}],"wp:attachment":[{"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=51255"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=51255"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.cryptocabaret.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=51255"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}