TEAM JM-15-01

5th Jamia National MOOT COURT COMPETITION, 2015 Jamia Millia Islamia University,New Delhi

IN THE HON’BLE SUPREME COURT OF MORDOR

[SLP (C) No. 1/2015)]

( Under Article 136 of Constitution of Mordor )

In the case of:

Moonshine Mordor Pvt Ltd & anr……………………………….. (petitioner/Appellant)

v.

Neptune Mordor Pvt Ltd …………………………………. (Respondent)

Clubbed with SLP(C) NO 2/2015

(Neptune Mordor Pvt Ltd vs. Moonshine Mordor Pvt Ltd & anr)

Upon submission to the Hon’ble Chief Justice of Mordor and his companion justice of the Hon’ble Supreme Court of Mordor

MEMORIAL ON BEHALF OF petitioner

TEAM CODE JM 15-01

TABLE OF CONTENTS

LIST OF ABRIVIATION …………………………………………………………………... 3

INDEX OF AUTHORITIES

Statutes.......................................................................................................4.

Books...........................................................................................................4.

Table of Cases.............................................................................................4.

STATEMENT OF JURISDICTION………………………………………………..6

STATEMENT OF FACTS.............................................................................................7

STATEMENTS OF ISSUES …………………………………………………....…….9

SUMMARY OF ARGUMENTS................................................................................10

ARGUMENTS ADVANCED…………………………………………………………..…12

ISSUE-1 Whether the Neptune Mordor Pvt. Ltd. Infringe the copyrights of Moonshine Mordor Pvt.

Ltd.?.............................................................12

ISSUE-2 Whether using the name of MMBL in the advertisement of SuperDunk causes Trademark dilution of well known trademark “India

Moonball Basketball League”?................................................................................19

ISSUE-3 Whether the Neptune was indulging in unfair ompetition,commercial misappropriation and unjust commercialinrichment?......................23

PRAYER……………………………………………………………………..…………. 31

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LIST OF ABBREVIATIONS

AIR All India ReporterAll Allahabad High CourtCal Calcutta High CourtCr.P.C. Code of Criminal ProcedureDel Delhi High CourtEd. EditionGuj Gujarat High CourtIPC Indian Penal CodeIC Indian CasesMad Madras High Courtn. Foot Note no.Ori Orissa High Courtp. Page No.P&H Punjab and Haryana High CourtPat Patna High CourtTTC Travel Ticket CollectorFC Foreign CorrespondentsCr LJ Criminal Law JournalHC High CourtILR Indian Law ReporterSCC Supreme Court CasesOrs. OthersPara ParagraphGovt. GovernmentSec. SectionKmph Kilometer per hourN.Y. New York Supreme CourtCal. Ct. App. California Petitioner ReportIll. App. Ct. Appellate Cort of IllinoisN.W. North Western ReporterN.E. North eastern ReportK.B. Kings BenchPenn. St. Pennsylvania Statei.e., That is@ Alias

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INDEX OF AUTHORITIES

STATUES REFERRED

The Constitution of Mordor, 1950

The Copyright Act 1957

The Lanham (Trademark) Act

The Trademark Act 1999

Transfer of Property Act, 1882

BOOKS REFERRED

WADEHRA B.L. Law Relating to Intellectual Property, 5 nd Ed. 2011;

Universal Law Publication Co., New Delhi-India;

DR. MYNENI S.R. Law of Intellectual Property, 6 th Ed. 2013,Asia Law House, Hyderabad;

SHUKLA M.N. Law of Torts, 20 th Ed. 2013, Central Law Agency, Allahabad;

RATANLAL & DHIRAJLAL Law of Torts, 25th Ed. Reprint 2008 (edited by Justice G.P. Singh) Wadhwa & Company Nagpur;

BLACK’S LAW DICTIONARY, (7th ed. 2009)

CASES REFERRED

Issue 1

1. Akuate Internet Services Pvt. Ltd. & Anr. Vs. Star Mordor Pvt. Ltd. & Anr. FAO (OS)

153/2013 and CM Appl. 4665/2013

2. Jilubhai Nanbhai Khachar, Etc. v. State Of Gujarat and Another  AIR 1995 SC.

3. Vikas Sales Corporation v. Commissioner of Commercial Taxes AIR 1996 SC 2082.

4. National Basketball Association and NBA Properties Inc. v. Sports Team Analysis and

Tracking Systems Inc., 939 F. Supp. 1071 (NBA-1 Case).

5. Ministry of Information and Broadcasting, Govt. of India & Ors. v. Cricket Association

of Bengal & Ors.,(1995) 2 SCC 161.

6. Hogg v. Scott. 105 F. Supp. 12 (M.D. Ga. 1952)

7. Syndicate of The Press of The Universtiy of Cambridge on Behalf of The chancellor,

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Masters and School Vs. B.D. Bhandari & Anr. 185(2011)DLT346.

8. Alfred Bell & Co. v Catalda Fine Arts, Inc., 191 F2d 99, 102 (2d Cir 1951.

9. Alfred Bell & Co. Vs. Catalda Fine Arts, Inc., [191 F. 2d 99, 102 (2nd Cir. 1951).

10. Eastern Book Company and Ors. Vs. D.B. Modak and Anr. AIR 2008 SC 809).

11. Ladbroke (Football) Ltd. v. Willim Hill (Football) Ltd.

12. V. Govindan v.E.M. Gopalakrishna Kone and Anr. AIR1955Mad391.

13. L. Batlin & Son v Snyder, 536 F2d 486, 490 (2d Cir 1976).

14. C. Cunniah S Co. v.Balraj S Co. AIR1961Mad111.

Isssue 2

15. Laxmikant V Patel vs Chetan Bhatt Shah AIR (2002) SC 275.

16. Uniply Industries Ltd v. Unicorn Plywood Pvt Ltd. AIR 2001 SC 2083.

17. Heinz Italia v. Dabur India Ltd. 2007(7) SCALE 608.

18. Patel v. Shah 2002(3) SCC 65.

19. Godfrey Philips India Ltd v. Girnar Food & Beverages Pvt Ltd. 2004 (5) SCC 257.

20. NR Dongre vs Whirlpool Corporation (1996) 5 SCC 714.

Issue 3

21. Hardie Trading Ltd vs Addison Paint and Chemicals Ltd 2003(27) PTC 241.

22. Louis Vuitton vs S Malik CS (OS) 1825/2003.

23. Time Incorporated vs Lokesh Srivastav 2005 (30) PTC 3 (Del).

24. Apple Corps and Metropolitan, 101 N.Y.S.2d at 490.

25. International News Service vs. Associated Press, 248 U.S. 215, 39 S.Ct. 68 (1918).

26. Pittsburgh Athletic Co. et. al vs. KQV Broadcasting Co., 24 F. Supp. 490.

27. National Exhibition Company vs. Martin Fass, 143 N.Y.S. 2d 767.

28. Twentieth Century Sporting Club Inc. and Ors vs. Transradio Press Service Inc. and

Anr., 300 N.Y.S. 159.

29. Marksman Marketing Services Pvt. Ltd. vs. Bharti Tele-Ventures Ltd. & Ors.,

O.A. No. 78/2006.

30. Moorgate Tobacco Co. v. Philip Morris [156 CLR 414 (1984)].

31. Indian Council For Enviro-Legal ... vs Union Of India & Ors (2012)1CompLJ360(SC).

32. Tulalip Shores, Inc. v. Mortland, 9 Wash.App. 271, 511 P.2d 1402, 1404.

33. L & A Drywall, Inc. v. Whitmore Const. Co., Inc., Utah, 608 P.2d 626, 630.

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34. International News Service vs. Associated Press, 248 U.S. 215, 39 S.Ct. 68 (1918).

35. Everhart v. Miles 422 A.2d 28 (Md. Ct. Spec. App. 1980)

STATEMENT OF JURISDICTION

The Petitioner has the honour to submit before the Hon’ble Supreme Court of Mordor, the memorandum for the petitioner in the Special Leave Petition (C) No. 1/2015 filed by Moonshine mordor Pvt Ltd under Article 136 of the Constitution of Mordor, 1950.

“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 Mordor.

(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.”

The present memorandum sets forth the facts, contentions and arguments in the present case.

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STATEMENTS OF FACTS

Introduction

In the instant case, the petitioner namely Moonshine Mordor Pvt. Ltd. is an industrial

conglomerate, the Chairman of the Moonshine Group, Mr. Frodo Potter, was very fond of

Basketball and had a dream of starting an Annual Basketball Tournament in Mordor.

Mordor Moonball Basketball League (MMBL)

The young talent would be picked up every year from different parts of the country and

matches would be held for a period of one month across the country. Moonshine launched such a

tournament by the name of “Mordor Moonball Basketball League” (MMBL) and announced

huge prize money under the banner of MMBL. A team of sports managers was assembled and

after spending a substantial amount of money in advertising and setting up teams, the basketball

tournament was started.

Success of MMBL

Moonshine started MMBL in the year 2011, but it was not a big success initially.

However, by the time its third edition was announced in 2013, the tournament had started to gain

popularity and . The tournament in 2013 was a big success.

Distribution of Right

Lot of television channels tried to get the broadcasting rights from Moonshine. On 5th

August, 2013, Moonshine entered into an agreement with FreeSports Mordor Pvt Ltd.

(FreeSports), a national television channel, and assigned a “bouquet of rights” exclusively to

FreeSports which included

recording,

broadcasting,

mobile rights etc

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Neptune: Telecommunication Company

By the time 2014 edition was announced, the whole nation wanted to follow the

tournament. Seeing this potential market, Neptune Mordor Pvt. Ltd. (Neptune), a leading

telecommunication company, started a mobile application under the name SuperDunk.

SuperDunk : Mobile Application & Advertisement

SuperDunk is a Mobile Application which would provide minute-by-minute match

updates of MMBL. Neptune also started advertising Superdunk on electronic and print media.

Neptune used the name of MMBL in the advertisements for SuperDunk. The advertisements also

consisted of pictures of some prominent players of this tournament.

Success of SuperDunk

SuperDunk became a rage and millions of mobile users started downloading this free

Application on their mobile phones to receive free minute-by-minute match updates. Neptune

was able to rope in big advertisers like Pepsi, Nike, Mcdonald’s etc on their SuperDunk App and

started making lot of profit.

Matter before the court

On getting to know about SuperDunk, Moonshine and FreeSports filed a suit against

Neptune and SLP before the honourable Apex Court of Mordor.

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STATEMENT OF ISSUES

ISSUE - I: whether the Neptune Mordor Pvt. Ltd. Infringe the copyrights of Moonshine

Mordor Pvt. Ltd.?

ISSUE -2: Whether using the name of MMBL in the advertisement of SuperDunk causes

Trademark dilution of well known trademark “Mordor Moonball Basketball League”?

ISSUE -3: Whether the Neptune was indulging in unfair competition, commercial

misappropriation and unjust commercial enrichment?

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SUMMARY OF ARGUMENTS

ISSUE - I: whether the Neptune Mordor Pvt. Ltd. Infringe the copyrights of Moonshine

Mordor Pvt. Ltd.?

It is humbly submitted before this Hon’ble court that in the instant case there is gross

infringement of copyright by the work of respondent. Being the owner of the MMBL,

Moonshine has all the Right regarding any alienation or transfer of any Right relating to MMBL.

The moonshine has the ownership over the entire products or any output from this project which

can be any type of Right, Information etc. Moonshine assigned all right regarding broadcasting,

recording, mobile right etc in the favor of Freesports. Neptune Mordor Pvt Ltd made an

application i.e. Neptune through which it can publish and update the match score. As the

Moonshine is the sole owner of the MMBL all right regarding any information out of MMBL

are of Moonshine, but the Neptune without the permission or license from Moonshine give

mobile update regarding all the match information. The act of respondent is against equity,

justice and good conscience. Because the information regarding the matches is intellectual work.

Right regarding broadcasting, mobile activity, and recordings are specifically assigned to the

freesports by an agreement. Only the petitioner have right of MMBL, but the act of respondent

infringe such right.

ISSUE -2: Whether using the name of MMBL in the advertisement of SuperDunk causes

Trademark dilution of well known trademark “Mordor Moonball Basketball

League (MMBL)”?

The Neptune Mordor Pvt Ltd created a mobile application with the intention to provide

score updates and other time sensitive information related to the matches of the MMBL series.

The Neptune Mordor Pvt Ltd went as far as to use the name of MMBL for the advertisement of

their application Superdunk. The defendants (Neptune Mordor Pvt Ltd) by this act infringed the

Intellectual Property rights of the plaintiffs (Moonshine Mordor Co.) as their act of using the

Trademark of MMBL for advertisement of their application created trademark dilution and thus

constitutes liability. In the instant case the trademark of MMBL though it is a unregistered

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trademark. But has acquired reputation and goodwill among its consumers since it became huge

success in the year 2013. The trademark of MMBL can be seen as descriptive since it is nothing

but the abbreviation of Mordor Moonball Basketball League. Similarly, in the case of Hardie

Trading, the Supreme Court held that use of a trade mark as understood under Indian law may

not necessarily be use upon or in physical relation to goods. The court has held that to constitute

use there is no requirement for the goods bearing the mark to be physically present and made

available in India. The court has held that the presence of the mark in advertisements, in invoices

and in orders also constitutes infringement of the trade mark.

ISSUE -3: Whether the Neptune was indulging in unfair competition, commercial misappropriation and unjust commercial enrichment?

it is humbly submitted before the honourable court that the dissemination of match

information through live match updates and score alerts by the defendants constitutes the tort of

'unfair competition' and 'commercial misappropriation/unjust commercial enrichment'. The

petitioner is the organiser of MMBL, it is a private organisation & it does not get any funding

from the Government in organising MMBL. And that it funds everything related to basketball,

right from setting up of the stadium to starting training academies for player, scorers etc., all by

itself. The main source of funding for Moonshine Mordor Pvt. Ltd is claimed to be from

monetizing the content arising from basketball matches, such as sponsorships and commercial

advertisements. The petitioner enters in an agreement with Freesports Where all the right

regarding broadcasting and communication is assigned in favour of Freesports . By the virtue of

agreement between the Freesports and Moonshine, only the Freesports have exclusive right to

communication and broadcasting of match. Whereas, the defendants have not acquired any

license from the plaintiff to disseminate any match information. The actions of Neptune Mordor

Pvt. Ltd is restraining Freesports from carrying out its rightful business and is also causing loss

to Freesports. That the defendants are not contributing any revenue and instant of that are eating

away the mobile and internet rights, without sharing the profit gained by them; thereby indulging

in unfair competition and unjust commercial enrichment. Due to the same act the respondent

committed the tort of unfair competition, commercial misappropriation and unjust commercial

enrichment.

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ARGUMENTS ADVANCED

ISSUE - I: whether the Neptune Mordor Pvt. Ltd. Infringe the copyrights of

Moonshine Mordor Pvt. Ltd.?

It is humbly submitted before this Hon’ble court that in the instant case there is gross infringement of copyright by the work of respondent.

1.1-Plaintiff’s Proprietary Right is Violated

The instant case is hereby, before the honorable court, where the right of petitioner is

grossly violated by the act of defendant. Violation of copyright or any proprietary right can be

claimed in circumstances where there is clear violation of right which is existing due to any

statute or any form of agreement in the eye of law.

As a matter of fact, the moonshine is the organizer of Mordor Moonshine Basketball

League (MMBL), it owned exclusive rights in respect of content generated during a basketball

event. These included the right to commercially exploit all event content. The Moonshine is the

sole owner of MMBL. Moonshine consider MMBL project as its baby and the information

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(time sensitive information like match score) that was generated from the project is their

property1. on August 5th, 2013 the petitioner had entered in an agreement with Freesports

Mordor Pvt Ltd (hereinafter referred to as FreeSports), where the petitioner assigned a

“bouquet of rights” including

(1) Broadcasting Right2

(2) Recording Right :- Include Visual recording3 and sound

recording4. (3) Mobile Right 5 which include Mobile Activation Rights6

etc. Mobile Activation Rights means the right to make available any

form of match schedule; match and score alert and application   exploited via SMS, MMS or any

other form of   Mobile   Communications Technology or Mobile Wireless Technology; It is

clarified that no other form of exploitation would be permitted such as competition, game,

fantasy event, predictor game, application or other activation which are expressly prohibited.

Being The owner of the MMBL, Moonshine has all the Right regarding any alienation or

transfer of any Right relating to MMBL .Moonshine is a project which is result of huge capital,

skill and labor. All the product or any output from this project which can be any type of Right,

Information shall be in the sole ownership of MMBL, all outputs (information, broadcasting

right etc) is their property. Also the expression "property" has been construed broadly rather than

in a narrow sense7.

Therefore Proprietary Right exists in the favor of petitioner. And one who shall interfere

with such right without any license cause infringement or violation of such Right. In instant all

such right are assigned in the favor of Freesports, including mobile right. As the mobile right8

mobile application is included within the meaning of mobile right and clearly specified that even

a mobile application infringing such right and shall be caused as violative. Hence creating such

1 Fact sheet page no 022 Communication to the public in form of sound recording or visual recording of the broadcast and any other right

specified in § 37 of Act.3 § 2 (F) "cinematograph film"4 § 2 (XX) "sound recording" means a recording of sounds from which such sounds may be producedregardless of the medium on which such recording is made or the method by which the sounds are produced;5 and The right to deliver or provide access to the Feed or Footage,…Coverage in the Territory during the Rights Period, for reception and viewing in an intelligible form on a Mobile Device.6 Akuate Internet Services Pvt. Ltd. & Anr. Vs. Star Mordor Pvt. Ltd. & Anr. MIPR2013(3)17 Sec 52 of the Transfer of Property Act, 1882 in the report of the 157th LawCommission of 1998,see also : Jilubhai Nanbhai Khachar, Etc. v. State Of Gujarat and Another AIR 1995 SC 1.8 Id.

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mobile application with purpose to publish match score infringes copyright. The act of

respondent is for the purpose of trade and earning which prejudicially affect the owner of the

copyright9.

As per Gujrat HC10 “The Right on intellectual property is not narrow, but it also prevent

others, without his consent to or license, from exercising any other form of right attached a

copyright”11.And to prevent unauthorized adaption or any act which go beyond what was

authorized.12

By taking reference to the case of National Basketball Association and NBA Properties

Inc.13 it was held by the madras High Court 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 sown14.

Further the Apex Court in a case of15held that the organisers of the event had a right to

sell the telecasting rights of the event to any agency... it has the right to choose the best method

to earn the maximum revenue possible. In fact, it can be accused of negligence and maybe

attributed improper motives, if it fails to explore the most profitable avenue of telecasting the

event, when in any case, in achieving the object of promoting and popularizing the sport.In

determining Whether a work is entitled to copyright protection there remains the rough practice

test that “what is worth copying is prima facie worth protecting16. In the modern work everyone

wants to earn money without doing any work, publishing match score etc are some work which

are at priority to earn more at low cost. So to protect such work it is required to bring some strict

action. The instant situation is same. so need to protect the copyright in same.

9 §51(ii) of The Copyright Act. 10 Deepak Printing v. Forward Stationary Mart(1981)PTC186. 11 George Hension ltd. v Restawlle Upholster(1975)RPC 31.12 Chaplin V Leslie Frewin (Publishers)Ltd (1966)CH 71.13 National Basketball Association … v. Sports Team Analysis and Tracking Systems Inc., 939 F. Supp. 1071.14 Marksman Marketing Services Pvt. Ltd. vs. Bharti Tele-Ventures Ltd. & Ors., O.A. No. 78/2006.

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In Hogg v. Scott17, "the true principle in all these cases is, that the defendant is not at

liberty to use or avail himself of the labour which the plaintiff has been at for the purpose of

producing his work, that is, in fact, merely to take away the result of another man's labour, or, in

other words, his property."

Therefore, considering the judgements of the learned Judges given in aforementioned

cases, it is evident that Neptune Mordor Pvt Ltd by their actions violated the propriety rights of

the Plaintiffs (Moonshine Mordor Co.).

1.1.1 Communication Right

As per sec 14(C)( ii)of The Copyright Act "copyright" means the exclusive right

subject to the provisions of this Act, to do or authorise the doing of any of the following acts in

respect of a work or any substantial part thereof, namely

(c) in the case of an artistic work,-(ii) to communicate the work to the public;

The section is very clear that the authorized person has right to communicate the

information or his work to the public in whichever mode he want to be. Since to play a sports is a

skill, and a skill is a artistic work which come within the meaning of art. As copyright prevail on

artistic work. And match score is the direct product of such artistic work copyright prevail on it.

In instant case all the right of players are in the pocket of Moonshine. The moonshine have all

right regarding players. Since all rights are with Moonshine, he is directly authorized to decide

that through which medium its copyrighted work is to communicated to the people. As

Moonshine is the sole authorized one to decide the mode of communication. But communicating

match score without his permission is violative of his right.

Hence the act of Neptune infringes the right of Moonshine.

15Secretary, Ministry of Information and Broadcasting, Govt. of India & Ors. v. Cricket Association of Bengal & Ors (1995) 2 SCC 161 (MIB Case).16 University of London Press Ltd v University Tutorial Press Ltd (1961)2CH601.17 105 F. Supp. 12 (M.D. Ga. 1952)

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1.2-Match score comes in Public Domain when it is broadcast and come to

knowledge of individual who do not have electronic device.

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Public Domain means no copyright protection is available to the concerned work and

everyone is free to use that work in whatsoever manner he wishes to 18. Public Domain is also

known as ‘publicly available content’ and ‘Public Domain content’ and is often used

interchangeably to describe any content to which the public has access.

Black’s Law Dictionary19 Defines “Public Domain” as "realm of publications,

inventions, and processes that are not protected by copyright or patent. Things in the Public

realm can be appropriated by anyone without liability for infringement".

In the instant case the match score do not fall within the any of definition specified

above. The match score of MMBL comes in public domain when it is accessible to general

public or come to the knowledge of the person who does not have e-device or radio or

television. The match score of MMBL is not publicly available content. In the case of  Akuate

Internet Services Pvt. Ltd. & Anr. Vs. Star Mordor Pvt. Ltd. & Anr.20 it was held by Delhi

High Court that c facts did not enter the Public Domain simultaneously with the events, due to

the time lag of few seconds as a result of time taken for transmission. "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."

Also in the case of Secretary, Ministry of Information and Broadcasting, Govt. of

Mordor & Ors. v. Cricket Association of Bengal & Ors21.where the Supreme Court held that

BCCI was a non-profit making organization, which officially controls the organised game of

cricket in Mordor and had held that BCCI's duty was to explore the most profitable avenues of

telecasting the event. Underlining the need to protect time sensitive information emanating

from cricketing events specifically score updates/match alerts the plaintiffs position was that

match information did not enter Public Domain for a particular span of time. A distinction was

drawn between those having access to television or radio and their ability to be informed about

match status in real-time and those who do not have such access (like those in office or

courtrooms etc) who cannot have instant access to match status.

18 Syndicate of The Press of The Universtiy of Cambridge on Behalf of The chancellor, Masters and School Vs. B.D. Bhandari & Anr. 185(2011)DLT34619 Blacks law Dictionary, 7th edition20 FAO (OS) 153/2013 and CM Appl. 4665/201321 (1995) 2 SCC 161

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Further in the case of B.D. Bhandari & Anr22 Delhi High Court given three common

ways under which a work can be attributed as a work in ‘Public Domain':

(i) No copyright protection available: copyright law does not protect this type of work. §13

Act provides for the works in which copy right subsists.§14 further provides that No person

shall be entitled to copyright or any similar right in any work, whether published or

unpublished, otherwise than under and in accordance with the provisions of this Act or any

other law for the time being in force. When a work falls within the ambit of section 13 no

further action is mandatorily needed to make it copyright protected.

(ii) Dedication: the owner of a work may deliberately place it in the Public Domain'.

Section 21 of the Mordorn Copyright Act provides that an author may relinquish his copyright

by giving a notice to this effect to the registrar of copyright if he wishes so.

(iii) Expiration of copyright: the copyright has expired. Section 22 of the Mordorn Copyright

Act provides that the copyright in a work shall subsist within the lifetime of the author until

sixty years from the beginning of the calendar year next following the year in which the author

dies.

As per the guideline provided by Supreme Court match scores do not come in public

domain as firstly the present case fall within the meaning of work. Secondly no dedication and

finally no expiry of copyright. Therefore match score do not fall in public Domain.

1.3-Match score is product of originality and creativity

The Oxford English Dictionary defines ‘copyright’ as ‘the exclusive right given by law

for a certain term of year to an author, composer etc. (or his assignee) to print, publish, and sell

copies of his original work’

Originality in copyright works is the sine qua non of all the copyright regimes of the

world & it means that the work owes its creation to the author and is not consisting of actual

copying."23 Commonly, the term ‘original’ means something that is new, not done before &

owes its origin' to the 'author’24. Originality is the aspect of created or invented works, by as

being new or novel, and thus can be distinguished from reproductions, clones, forgeries, or

derivative works. It is a work created with a unique style and substance. The term "originality" is

often applied as a compliment to the creativity of artists, writers, and thinkers. The test of 22 Id.

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originality in India and UK is same25, which is based on "skill, judgment , labour and investment

of capital,".26

Although a number of interpretations have been given to the term, there are certain points

on which agreement seems to have been firmly established. Primary among these points are two

basic concepts,

First that the work must not be merely a copy of a previous work, and

secondly that the work is the result of the investment of individual skill, judgment or labour"27

The U.S. Supreme Court in one of its decision28 explained that the requirement of

originality is not particularly stringent and is comprised of two elements:

The work be independently created by the author (as opposed to copied from other

works) and ;

It possesses at least some minimal degree of creativity. 

In the instant case the Moonshine invested its capital, labor, skill to start the MMBL.

Which is the product of its “Originality and Creativity” and therefore it had a copyright over it29.

The MMBL fulfill the basic element discussed above which is given by US Supreme Court, As

the work is independently created by the Moonshine through proper planning, management,

Skill, Judgment and huge capital investment and is not copied from anyone and is a original

work. Secondly it possesses much degree of creativity as the idea to implement such innovative

ideas which have huge risk and conducting such huge entertainment event is creative in itself.

Therefore it’s the product of Originality and creativity.

In few cases30 there is very little amount of originality but the same is protected by law

and "no man is entitled to steal or appropriate for himself the result of another's brain, skill or

labour even in such works." later judicial statements described originality in terms of individual

effort without regard to any degree of novelty or aesthetic merit. Eventually, originality came to

23 Alfred Bell & Co. v Catalda Fine Arts, Inc,191 F2d 99, 102 (2d Cir 1951)24 Id.25 Eastern Book Company and Ors. Vs. D.B. Modak and Anr. AIR 2008 SC 809)26 Ladbroke (Football) Ltd. v. Willim Hill (Football) Ltd. MANU/EG/0273/196427 Id.

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be seen as requiring no more than the absence of plagiarism31. The work of Moonshine is also a

independent creation as it is not copied from any existing work.

  The copyright, protection finds its justification in fair play. When a person produces

something with his skill and labour, it normally belongs to him and the other person would not

be permitted to make a profit but of the skill and labour of the original author. In the case of

Walter V Lane32it was held that in order secure copyright protection what is required is that the

author must have bestowed upon the work sufficient judgment, skill, labour or capital. It is

immaterial whether the work is wise or foolish, accurate or inaccurate or whether it has or has

not any merit.

The word 'original' does not demand original or inventive thought, but only that the work

should not be copied but should originate from the author. In deciding, therefore, whether a work

in the nature of a compilation is original, it is wrong to consider individual parts of it apart from

the whole. For many compilations have nothing original in their parts, yet the sum total of the

compilation may be original. In such cases the courts have looked to see whether the compilation

of the unoriginal material called for work or skill or expense33. If it did, it is entitled to be

considered original and to be protected against those who wish to steal the fruits of the work or

skill or expense by copying it without taking the trouble to compile it themselves. In each case, it

is a question of degree whether the labour or skill or ingenuity or expense involved in the

compilation is sufficient to warrant a claimto originality in a compilation34. The Court held that

in order to obtain copyright production for literary, domestic, musical and artistic works, the

subject dealt with need not to be original, nor the ideas expressed be something novel. What is

required is the expenditure of original skill or labour in execution and not originality of

thought.35

28 Id.29Fact sheet page no 2 ¶ 0630 V. Govindan v.E.M. Gopalakrishna Kone and Anr. AIR1955Mad39131 L. Batlin & Son v Snyder, 536 F2d 486, 490 (2d Cir 1976)32 (1900)AC 53933 Nag Book House V State of West Bengal AIR 1982 Cal 245 34 Macmillan v copper AIR 1924 PC 7535 C. Cunniah S Co. v. Balraj S Co. AIR1961Mad111.

20

ISSUE -2 Whether using the name of MMBL in the advertisement of

Superdunk cause any trademark dilution

21

A trade mark is a mark capable of being represented graphically and which is capable of

distinguishing the goods or services of one person from those of others36. A trademark can be

represented graphically in the form of the company's logo or a signature and includes a device,

brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging

or combination of colours or any such combinations37. This includes abbreviation of any name38.

Trademark dilution happens when someone use a famous trademark in a way that is

likely to weaken its capacity to identify the famous trademark owner's goods or services or to

tarnish the reputation of the mark. The trademark owner need not show that you created

consumer confusion, and dilution may occur even if your goods or services are completely

different from the trademark owner's39.

As to the matter of the fact, the Neptune created a mobile application with the intention to

provide score updates and other time sensitive information related to the matches of the MMBL

series. The Neptune for the advertisement of their application used the name of MMBL without

the permission. The defendants by this act, create a confusion in the mind of people that the

Application must be authorized from Moonshione. Lots of people downloaded it as lot of

promotion is made in daily newspaper and television and through other medium. Promoting

application by using the MMBL mark without the permission of its owner is completely against

law. Hence created trademark dilution and thus constitutes liability.

To prevail the claim of trademark Dilution, plaintiff must establish that it has a valid

mark entitled to protection; and that the defendant used the same or a similar mark in commerce

in connection with the sale or advertising of goods or services without the plaintiff's consent.  

The plaintiff must also show that defendant's use of the mark is likely to cause confusion as to

the affiliation, connection or association of defendant with plaintiff, or as to the origin,

sponsorship, or approval of defendant's goods, services or commercial activities by plaintiff40. In

the instant case both the situation are fulfilled as the MMBL is very famous trademark. And the

respondent used the trademark without petitioner permission. Using the trademark by respondent

create confusion among the people that the application of Neptune is authorized application of

Moonshine. Therefore the act of respondent create trademark dilution. 36 Section 2 (zb) of the Trade Marks Act, 1999.37 Sec 2(1)m of the Trademark Act 1999.38 Laxmikant V Patel vs Chetan Bhatt Shah AIR (2002) SC 275.39 http://www.dmlp.org/book/export/html/1535.

22

  Prior Use- The priority in the use of trademark must be established by the owner by the

means of prior adoption and the use of the mark and the reputation created by such use in

consumers.

In Uniply Industries Ltd v. Unicorn Plywood Pvt Ltd, the Apex Court observed that the

test to determine priority in a mark is to determine continuous prior use and the volume of sales

or the degree of public familiarity with the mark.41Also In NR Dongre v Whirlpool Corporation42

it was held that the trademark WHIRLPOOL was held to have acquired reputation and goodwill

in India. The mark WHIRLPOOL was also held to have become associated in the minds of the

public with Whirlpool Corporation on account of circulation of the advertisements in the

magazines. So, the using of this mark or any other identical mark by the defendant would cause

the confusion in the minds of the costumers and they might mistake the defendant's products with

the products of Whirlpool Corporation. So, the Court provided injunction to Whirlpool

Corporation.

Reputation and Goodwill- The rights in an unregistered mark can easily be claimed if the

proprietor of the mark establishes that the mark has acquired a reputation and goodwill in

relation to the goods and services in respect of which it has been used. If the owner of the

trademark is able to prove his established reputation and goodwill among the consumers.

Moonshine started MMBL in year 2011 by the time its third edition was started in2015,

the tournament had started to gain popularity. The tournament in 2013 was a big success. By the

time 2014 edition was announced, the whole nation wanted to follow the tournament43.These

shows that the tournament got lots of popularity and created reputation and goodwill in whole

nation. The reputation and monetary goodwill of tournament can also judge by the things that

lots of television tried to get the broadcasting right. In Heinz Italia v. Dabur India Ltd44, the

Court relied on the "enviable reputation" acquired by the plaintiff to grant relief in a passing off

action, as the similarity between the rival products was capable of confusing the relevant

consumers.

An unregistered descriptive trademark is protected by law in India if it has acquired a

second meaning in the market and due to the presence of this attribute has become a well known

mark in the public. As in present situation the MMBL earned a good reputation in market, whole

40 1-800 Contacts, Inc. v. WhenU.com, Inc., 414 F.3d 400 (2d Cir. 2005).

23

nation know about it, clearly signifies, that the mark of MMBL was a repudiated and well known

trademark in Mordor.

In Patel v. Shah45, the Supreme Court of India observed that a descriptive word can be

used as a trademark provided that it becomes well known and acquires secondary distinctive

meaning.

Also in the case of Godfrey Philips India Ltd v. Girnar Food & Beverages Pvt Ltd46, the

Apex Court observed that a descriptive trademark may be entitled to protection if it is shown to

have assumed a secondary meaning which identifies it with a particular product or source.

In the case of NR Dongre v. Whirlpool Corporation47, it was held that the

trademark WHIRLPOOL had have acquired reputation and goodwill in India. The mark

WHIRLPOOL was also held to have become associated in the minds of the public with

Whirlpool Corporation on account of circulation of the advertisements in the magazines. So, the

using of this mark or any other identical mark by the defendant would cause the confusion in the

minds of the costumers and they might mistake the defendant's products with the products of

Whirlpool Corporation. So, the Court provided injunction to Whirlpool Corporation.

In the case of ITC Ltd. v. Philip Morris Products48 The court emphasized that the

following four essential elements need to be established in order for a dilution case to succeed:

the impugned mark is identical or similar to the senior mark;

the senior or injured mark has a reputation in India;

the use of the impugned mark is without due cause;

the use of the impugned mark (amounts to) taking unfair advantage of, or is detrimental

to, the distinctive character or reputation of the registered trade mark.

In the instant case the trademark of MMBL, though unregistered has acquired reputation

and goodwill among its consumers since it became a huge success in the year 2013. The

41 AIR 2001 SC 208342 (1996) 5 SCC 71443 Fact sheet page no 1&2.44 2007(7) SCALE 608.45 2002(3) SCC 65.46 2004 (5) SCC 257.47 NR Dongre vs Whirlpool Corporation (1996) 5 SCC 714.48 ITC LIMITED VS. PHILIP MORRIS PRODUCTS SA & ORS. 2010 (42) PTC 572 (Del.).

24

trademark of MMBL can be seen as descriptive since it is nothing but the abbreviation of Mordor

Moonball Basketball League.

Similarly, in the case of Hardie Trading49, the Supreme Court held that use of a trade

mark as understood under Indian law may not necessarily be use upon or in physical relation to

goods. The court has held that to constitute use there is no requirement for the goods bearing the

mark to be physically present and made available in India. The court has held that the presence

of the mark in advertisements, in invoices and in orders also constitutes use of the trade mark.

In the case of Louis Vuitton v. S Malik50, Louis Vuitton brought a case for violation of its

EPI STYLE trademark before the Delhi High Court. The court issued an ex parte interim

injunction and Anton Pillar orders against the defendant. In a case51, the court awarded both

compensatory damages and punitive damages for infringement of the trademark TIME. The

court awarded the plaintiff Rs 500,000 for loss of reputation, plus Rs 500, 000 in punitive

damages, including interest; the total damages award was Rs1.6 million. The court held that the

defendant’s magazine, which used the Hindi transliteration of the word ‘Time’ with a distinctive

red border, was a slavish imitation of the plaintiff’s trademark and held the defendant liable for

infringement.

So, considering the decisions of the learned Judges of the Hon’ble courts in the aforementioned

cases, it can be understood that a no person or company can use a trademark that is already being

used by another company or person and that has already earned goodwill and reputation among

its consumers. It can also be observed that a trademark doesn't need to be registered to enjoy the

protection of law, it would get the required protection if it has been primarily used by the

proprietor and has established a reputation and goodwill amongst its consumers.

ISSUE:-3 Whether the Neptune was indulging in unfair competition,

commercial misappropriation and unjust commercial enrichment?

It is humbly submitted before the honourable court that the dissemination of match

information through live unfair competition, commercial misappropriation and unjust

49 Hardie Trading Ltd vs Addison Paint and Chemicals Ltd 2003(27) PTC 241.50 Louis Vuitton vs S Malik CS (OS) 1825/2003.51 Time Incorporated vs Lokesh Srivastav 2005 (30) PTC 3 (Del).

25

commercial enrichment. score cards, match updates and score alerts via Short Messaging Service

(SMS)/Mobile Value Added Services (MVAS), by the contesting defendants constitutes the tort

of 'unfair competition' and 'commercial misappropriation/unjust commercial enrichment'52. The

petitioner enters in an agreement with Freesports Mordor Pvt. Ltd. Where all the right regarding

broadcasting and communication is assigned in favour of Freesports & only the Freesports have

exclusive right to communication and broadcasting of matche. Whereas, the defendants have not

acquired any license from the plaintiff to disseminate any match information. Due to the same

act the respondent committed the tort of unfair competition, commercial misappropriation and

unjust commercial enrichment.

The petitioner is the sole organiser of basketball in Mordor, it has the exclusive rights in

relation to the content generated during a basketball event, including the right to commercially

exploit all content arising from such event since, Moonshine Mordor Pvt. Ltd. is a private

organisation & it does not get any funding from the Government in organising MMBL. And that

it funds everything related to basketball, right from setting up of the stadium to starting training

academies for player, scorers etc., all by itself. The main source of funding for Moonshine

Mordor Pvt. Ltd is claimed to be from monetizing the content arising from basketball matches,

such as sponsorships and commercial advertisements. Since Moonshine Mordor Pvt. Ltd has

given all its “bouquet of right” exclusively to Freesports. Here, Freesports is a sport broadcasting

channel that has invested a fortune to acquire the “bouquet of rights” regarding MMBL and the

only source to earn profit from its investment for Freesports is by broadcasting the basketball

league’s matches or by using other rights for which it has paid. These rights include

broadcasting, recording, mobile rights, etc. Therefore, The only source of earning of Freesports

is broadcasting, recording or using mobile rights. Thus, the actions of Neptune Mordor Pvt. Ltd

is restraining Freesports from carrying out its rightful business and is also causing loss to

Freesports.

That the defendants do not contribute their revenue or a part thereof for the purpose of

promoting the game of basketball in Mordor and instant of that the defendants are eating away

52 Id.

26

the mobile and internet rights, without sharing the profit gained by them; thereby indulging in

unfair competition and unjust commercial enrichment.

3.1 UNFAIR COMPETITION

Unfair competition means “Any act of competition contrary to honest practices in

industrial and commercial matters”53 it also denotes any fraudulent, deceptive, or dishonest trade

practice that is prohibited by statute, regulation, or the common law. It consists of a body of

related doctrines that gives rise to several different causes of actions, including

(1) actions for infringement of patents, trademarks, or copyrights;

(2) actions for wrongful appropriation of trade names, trade dress, and trade secrets; and

(3) actions for publication of defamatory, false, or misleading representations54

According to Black’s Law Dictionary55 Unfair Competition means a term which may be

applied generally to all dishonest or fraudulent rivalry in trade and commerce, but is particularly

applied to the practice of endeavoring to substitute one's own goods or products

in the markets for those of another, having an established reputation and extensive sale, by

means of imitating or counterfeiting the name, title, size, shape, or distinctive peculiarities of the

article, …or other such simulations, the imitation being carried far enough to mislead the general

public or deceive an unwary purchaser, and yet not amounting to an absolute counterfeit or to the

infringement of a trademark or trade-name.

As per the definition provided the instant case come within the preview of unfair

competition.In the present situation the defendant is using the name, trademark and

photographs of MMBL to promote his application. The defendant without taking licence and

permission using the name of well known trademark which is against the principle of fair

competition. The Respondent is providing the match score/ updates to the people under the

mark of MMBL, it creates a presumption in the mind of individual that the information

provided by the application is authorised. As the application contains the mark, name,

abbreviation of MMBL. The Neptune, also in its advertisement using the Copyrighted picture,

and well known Trademark to promote the application. Which clearly specify that the property

53 Paris Convention Art. 10bis54 http://intellectualproperty.uslegal.com/unfair-competition/55 6th edition

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of Petitioner is used by the Neptune without any licence or permission causing a huge

economical and moral loss to Freesports as all the right regarding broadcasting and

communication is assigned in the favour of Freesports. It is discussed previously that the act

cause infringement of copyright and dilution of Trademark as accordance to the first definition

the act of respondent comes within the meaning of Unfair competition.

“Endeavoring to reap where it has not sown” Principle laid down in Apple Corps case:- Match

score is the direct product of match, and for the same these millions of amount are expended.

Therefore the information generated or gathered is at huge cost. Clearly satisfy that in present

situation can we follow the principle laid likewise, in the case Apple Corps and Metropolitan

Opera56, the court was primarily concerned with a defendant "endeavoring to reap where it has

not sown”. It also recognized record piracy, a form of unfair competition, “where the apparent

purpose is to reap where one has not sown, or to gather where one has not planted, or to build

upon, or profit from, the name, reputation, good will or work of another."

“ The who has fairly paid the price should have the beneficial use of the property ”The

Principle laid down in INS case :- The United States Supreme Court in the case of

International News Service57 held that. 'he who has fairly paid the price should have the

beneficial use of the property'. In the INS Case, The U.S. Supreme Court, observing that the

question, 'what is unfair competition in business' must be subjectively determined in particular

reference to the character and circumstances of each business, held:

The defendant's acts of taking material acquired by the skill, organisation 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 underlying principle behind the tort

of 'unfair competition is that 'he who has fairly paid the price should have the beneficial use of

the property'

In the present case also the freesports succeed to acquire the broadcasting right by

paying huge cost, as lot of television channel tried to get these right. The moonshine assigned

bouquet of right including broadcasting, recording, mobile right,communication right and many

more in the favour of freespots. As frteesports paid huge cost to get such right, all the profit and

earning from such right should be get in the pocket of freespotrs. But Neptune is violating the

right and giving match update which come within the meaning of communication right, without

56 101 N.Y.S.2d at 490

28

any licence or permission therefore as specified by the US Supreme Court causing unfair

competition.

The principle enunciated in the INS Case in respect to 'unfair competition' and 'unjust

commercial enrichment' has been followed in other cases regarding dissemination of

updates/alerts arising from sporting events. In the case of

Pittsburgh Athletic Co58, Court dealt with a case where the plaintiff prayed for a

preliminary injunction to restrain the defendants from broadcasting play-by-play reports and

description of baseball games played by the plaintiff’s baseball team. The defendant admitted to

the broadcasting of play-by-play news of the plaintiff's games and asserted its intention to

continue doing so. In a similar case of National Exhibition Company59 the Supreme Court of

New York County was also faced with a prayer for injunction against the defendants who were

listening to the broadcast of play-by-play descriptions of baseball games organised by the

plaintiff and sending out simultaneous teletype reports of the games to radio stations for

immediate broadcast. The same Court in the year 1937,in Twentieth Century Sporting Club

case60 was faced with a prayer for injunction against the defendants from interfering with the

exclusive right of the plaintiffs to broadcast a description of certain boxing exhibition.

In all the three cases, the Courts granted the injunction following the ratio of the INS

Case. The Reliance can also be made of all these case in present situation.

The Madras High Court also in the case of Marksman Marketing Services Pvt. Ltd.

vs. Bharti Tele-Ventures Ltd. & Ors61, which dealt with nearly identical facts as the instant

case. In the Marksman Case, 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. 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. Further the Madras High 57 International News Service vs. Associated Press, 248 U.S. 215, 39 S.Ct. 68 (1918)58 Pittsburgh Athletic Co. et. al vs. KQV Broadcasting Co., 24 F. Supp. 490.59 National Exhibition Company vs. Martin Fass, 143 N.Y.S. 2d 767.60 Twentieth Century Sporting Club Inc. and Ors vs. Transradio Press Service Inc. and Anr., 300 N.Y.S. 159 

29

Court, relying on the decision of the New York Court62 in the case of held 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.

Moorgate was particularly stressed upon to say that the broad tort of unfair competition cannot

be resorted to in order to prevent legitimate business in an activity of the kind indulged in by

the petitioners63

Therefore the respondent is liable for unfair competition, as per the principle laid

down by the US Sc. And followed in most of the judgement in India as well as in foreign

Court.

3.2 Unjust enrichment

  “Unjust enrichment” has been defined by the court as the unjust retention of a benefit to

the loss of another, or the retention of money or property of another against the fundamental

principles of justice or equity and good conscience. A person is enriched if he has received a

benefit, and he is unjustly enriched if retention of the benefit would be unjust64.

The Black’s Law dictionary defines Unjust enrichment doctrine as a General principle

that one person should not be permitted unjustly to enrich himself at expense of another, but

should be required to make restitution of or for property or benefits received, retained or

appropriated, where it is just and equitable that such restitution be made, and where such action

involves no violation or frustration of law or opposition to public policy, either directly or

indirectly65. Unjust enrichment of a person occurs when he has and retains money or benefits

which in justice and equity belong to another 66 and if retention of the benefit would be unjust.67

As in the instant case the MMBL is the project of Moonshine and for that huge cost is

invested by the petitioner. As Match score is the direct product of match, and for the same these

millions of amount are expended. All the right, Information regarding the match are the product

of moonshine project. The Moonshine is the sole entity who have all the Rights and is the Sole

61 Id.62 Id.63 Id.

30

owner. The Neptune without the permission licence used the property of petitioner and earn huge

amount of profit hence enriched from the estate of other. And retention such unjust benefit is

against the Fundamental principle of justice equity and good conscience. The act of defendant

come in preview of Doctrine of Unjust enrichment

The Bench of Justice Dalveer Bhandari Current CJI H.L. Dattu, of honourable Apex

Court in the case of ICEA68 set the essential of Unjust enrichment, which are

(i) The receipt of a benefit that causes loss to the claimant, or

(ii) The wrongful receipt of a benefit by the defendant, or

(iii) The receipt of a benefit that “belongs” to the claimant69

In the instant case the essential laid down in ICEA are settled as

Firstly due to the act of Neptune the Petitioner incurred economical and equilateral loss.

As such right was assigned to the Fresports by paying huge cost and the Neptune is using such

right without paying any cost. The major thing is that as the Neptune publish match score under

the trademark of MMBL, it must be presumed by the industrialist that the Neptune is authorized

to publish match score and for that they paid huge cost to the give their advertisement to

Neptune, which is unjustified. As these amount should be paid to one who have paid to earn such

right. As the principle that who has fairly paid the price should have the beneficial use of the

property70 therefore the petitioner incurred financial loss while Neptune earn Huge economical

benefit.

Secondly the defendant earn all these wrongfully as his act was without any license and

Contrary to the agreement. The act is violating the principle of justice, equity and good

conscience. There the defendant earns the benefit wrongfully. And

Finally as the petitioner have all the rights. He is lawfully entitled to earn such profit as

these benefits belong to petitioner. Therefore the Respondent receipts the benefit belong to

64 Indian Council For Enviro-Legal ... vs Union Of India & Ors (2012)1CompLJ360(SC)65 Tulalip Shores, Inc. v. Mortland, 9 Wash.App. 271, 511 P.2d 1402, 1404.66 L & A Drywall, Inc. v. Whitmore Const. Co., Inc., Utah, 608 P.2d 626, 630.67 Id.68 Id.

31

petitioner. And hence in the present situation unjust enrichment exist as it have all the essential

given in the case of ICEA.

Also in the case Everhart v. Miles71 the US court held that three elements must be

established in order to sustain a claim based on unjust enrichment:

(1) A benefit conferred upon the defendant by the plaintiff;

(2) an appreciation or knowledge by the defendant of the benefit; and

(3) The retention by the defendant of the benefit under such circumstances as to make it

inequitable for the defendant to retain the benefit without the payment of its value.72

The element given by the US supreme court totally fit in present case as

firstly the defendant incurred benefit73

Secondly the defendant act was not a mistake but he was well wised with the fact that he

incurred benefit which belongs to petitioner and going contrary to the law he published various

advertisement to promote the application indicate that he was having sufficient knowledge. And

Finally the respondent retains all the belong to the petitioner with him without paying any

payment to the petitioner. Therefore the element laid down in the Everhart v. Miles74 are

identical to present situation. Hence Unjust Enrichment prevails in present matter.

3.3 Commercial Missappropriation

Commercial misappropriation is a category of invasion of privacy where one's name, image,

property, likeness, mark etc is used without permission for commercial purposes75.

In the case of INS76 the court of set a multi-factor "test," for misappropriation claim where

plaintiff is required to demonstrate that:

It generates or gathers information at a cost;

The information is time-sensitive;

A defendant's use of the information constitutes free riding on the plaintiffs efforts;

The defendant is in direct competition with a product or service offered by the plaintiffs; and

69 Id.70 International News Service vs. Associated Press, 248 U.S. 215, 39 S.Ct. 68 (1918)71 422 A.2d 28 (Md. Ct. Spec. App. 1980)72 Blacks law dictionary,Everhart v. Miles, 47 Md.App. 131, 136, 422 A.2d 28.

32

The ability of other parties to free-ride on the efforts of the plaintiff or others would so

reduce the incentive..or service that its existence or quality would be substantially threatened.

If the principle set in INS case are applied to instant case. They satisfy all the element.

Firstly for conducting event like MMBL required to invest huge amount of money. The

expenses of conducting of matches, stadium, players, training etc are very huge in amount.

Secondly, the information emanating from a match is very-very time sensitive therefore

the peoples are ready to pay any amount to get match update. And the success of Neptune itself

is due to the reason that match information is so sensitive. He application downloaded by many

people shows the sensitive nature of match score.

Thirdly the defendant is free riding on plaintiff’s effort, as to acquire such right the

Freespors had to pay large amount of money whereas defendant has not acquired any right,

without the permission or license from petitioner publishing the match score and earning a huge

amount of profit. Without paying any cost. Therefore the third essential is also followed.

Fourthly the plaintiff is in direct competition with defendant as such rights are assigned to

Freesports. And the defendant is updating the match score. He is in direct competition. And

Finally Due to the act of respondent the market of petitioner is affecting as the Neptune

is giving match update at same instant.

Therefore, the instant matter follow all the set of principle lay down in the case of INS.

Hence in the present the commercial misappropriation exists.

73 Submitted in ICEA case essential point74 422 A.2d 28 (Md. Ct. Spec. App. 1980)75 http://itlaw.wikia.com/wiki/Commercial_misappropriation76Id.

33

PRAYER

IT IS HUMBLY SUBMITTED BEFORE THE HON’BLE SUPREME COURT OF

MORDOR THAT IN LIGHTS OF THE ABOVE ARGUMENTS, CASES AND

AUTHORITIES CITED, THE PETITIONER HUMBLY PRAYS BEFORE THE

HON’BLE COURT:

To pass an injunction against the Respondent.

Appropriate penalty may be imposed for:

-Infringement of Copyright.

-Dilution of Trademark.

To award reasonable Compensation.

Any other relief that may be granted as this hon’ble court may deem fit..

AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT IT MAY DEEM

FIT IN THE INTERESTS OF JUSTICE, FAIRNESS, EQUITY AND GOOD

CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL DUTY BOUND FOREVER

PRAYS

Place: Mordor Respectfully submitted

Date: …./…./2014

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