This article provides a basic overview of the Intellectual property (IP) involved in theme-based cafes/restaurants and the incidental IP infringements that may occur, knowingly or unknowingly, in light of the recent order passed by the Hon’ble High Court of Delhi in the case of Warner Bros Entertainment Inc. v. Mr. Ishant Kashiwal trading as the Hogwarts Kafe & Ors. (CS(COMM) 457/2021).
These days one can see a lot of cafes running around the cities, designed or inspired by popular movies or web series like F.R.I.E.N.D.S, Game of Thrones, Avengers, etc. “The Hogwarts Kafe” in Delhi was one among such, designed to give Potter fans a superlative experience, that was indeed enjoyed by many. However, they forgot to take necessary licensing from real parents of Potter (J.K. Rowling and Warner Bros), which resulted in a clear-cut lawsuit by the plaintiffs.
Copyright involved-
At the outset, copyright protects the “expression of an idea” and not the “idea” itself, which as a part of this discussion means that one can very well run a cafe based on a general theme like “friendship” or “magic”. However, when this general theme becomes specific so as people could easily relate it to a copyrighted work (a fictional character, movie, TV show, etc.,), such as “Harry potter’s magic” then it creates problems, as it infringes upon the intellectual creation of a creator, like J.K. Rowling in this case.
As per section 14 of the Indian Copyright Act, the author of a work, inter-alia, has the exclusive right “to reproduce the work in any material form” or “to adapt” it in any form, which is seemingly violated in the instant case as the entire layout of the cafe including the majestic seating, wall-paintings, banners, etc., were duplicated from the potter series. The entire menu was designed with the names associated with well-known characters like ‘Severes Soups’, ‘Gryffindor Burgers’, ‘Draco Desserts’ etc., with ‘deathly hallows’ triangular logo on it. Thus, providing all the necessary evidence needed for their takedown.
Trademark involved-
Trademark infringement is a matter of concern for theme-based cafes and they need to do the necessary background check before investing huge chunks of money. In the instant case, it is undeniable that Mrs. Rowling holds the copyright but Warner Bros are the registered proprietor of the well-known Trademarks ‘HOGWARTS’ and ‘HARRY POTTER’ and has been using the same globally for more than two decades. They had specifically registered the above-mentioned trademarks with the Indian TM registry and are very well eligible for statutory protection. Additionally, the plaintiff is the proprietor of the ‘THE WIZARDING WORLD’ properties including various trademarked names which were misappropriated by the defendants on their menu as ‘Ravenclaw Nachos’, ‘Slytherin Salads’, ‘Dumbledore Dimsums’ etc.,”.
It must be noted that even if such TMs were not registered by the plaintiff in India or in any other jurisdiction for that matter, they would have still been entitled to the protection owing to their tremendous transborder reputation or as a well-known trademark.
The fate of this case-
Finding prima-facie case in favor of the plaintiff, the court has granted an interim injunction under Order XXXIX Rule 3 CPC, against the defendants and has directed them to remove their advertisements from all the food delivery and social media platforms. This case is a prime example of what can happen if one tries to take a piggyback ride on someone else’s goodwill or established reputation without giving them the due credit. For now, the matter has gone under mediation and most probably will be settled outside the court.
By
ATUL BHATT
LLB, 3rd year
Campus Law Centre
University of Delhi