Case Summary and Outcome

The High Court of Delhi (India) dismissed an application for an interim injunction requested by TATA, one of India’s largest companies, against Greenpeace India and Greenpeace International. The plaintiff sought a permanent injunction, and a decree for damages to the extent of ₹100.000.000 [around $1,225,293 USD]. According to TATA the aforementioned organizations made malicious and defamatory statements through the creation of an online video game titled “Turtle vs. TATA”, in which the company’s involvement in an industrial project —and its negative impact on the nesting and breeding of Olive Ridley Turtles— was criticized. Following the Bonnard rule, the Court held that granting an injunction in defamation cases was exceptional. Considering that it was not evident that the defendants acted maliciously or made false statements, nor infringed on TATA’s trademarks —after Greenpeace India included some of its marks in its video game with parodic intent or for conveying criticism—, the Tribunal denied the motion.

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Facts

The Government of Orissa, India, awarded a concession to build and operate a port north of the Dhamra River —in the district of Bhadrak—, to The Dhamra Port Company Limited (DPCL), a 50-50 joint venture of Larsen and Toubro Limited and TATA Steel limited. TATA is India’s largest and oldest private-sector employer. The company’s revenue, by the time the events took place, “was equivalent to 2.1% of India‟s Gross Domestic Product” [para. 2].

Greenpeace India, an Indian affiliate of Greenpeace International — a non-profit organization with presence in countries across Europe, America, and Asia, also known for its activism regarding environmental causes—, raised concerns “about the alleged probable dangers to the nesting and breeding of Olive Ridley Turtles by the proposed port at various quarters” [para. 7], despite TATA obtaining all regulatory clearances for the development of Dhamra as an eco-friendly port.

Greenpeace India also made an online Pac-Man-inspired video game titled “Turtle vs. TATA” to garner attention and raise awareness. In the game, the player must “help the yellow turtles eat as many little white dots as possible without running into Ratty (presumably after Ratan Tata, chairman of the Tata Group), Matty, Natty or Tinku” [para. 7]. The game also stated: “while dodging the TATA demons if you eat a power pill, you will be gifted with superturtle powers to vanquish the demons of development that are threatening your home” [para. 7]. 

A screenshot of the video game reveals the use of the trademarks TATA and the “T” within a circle device (TATA’s logo), owned by the TATA company.

TATA considered that “the impugned game and the defendant’s use of the TATA mark and T device within a circle, amounted to defamation, with the ulterior motive of damaging its reputation” [para. 8]. TATA further alleged that Greenpeace India was dishonest and put forth wrong facts and information to the public with the motive of defaming the TATA group.

The TATA group (the plaintiff) initiated proceedings against Greenpeace International and Greenpeace India, seeking, before the High Court of Delhi, a permanent injunction, and a decree for damages to the extent of ₹100.000.000 [around $1,225,293 USD], against the aforementioned non-profit organizations (the defendants).

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Decision Overview

Judge S. Ravindra Bhat delivered the opinion of the Court. The main issue the Court analyzed was whether, under current case law, it could grant an interim injunction and decree damages —before a full trial— in favor of the plaintiff, considering that the TATA company argued that the defendants made malicious and defamatory statements on the internet that also amounted to trademark infringement. 

The plaintiff argued that although it was conscious that in defamation or loss of reputation cases it was normal to award damages after a full trial, some specificities present in the case at hand justified an interim injunction. The plaintiff said that the defendants targeted, TATA in a calculated manner with defamatory statements, although this company is a 50% shareholder in the DPCL joint venture. Thus, for the company, the fact that Greenpeace India drew attention exclusively to TATA by using its trademarks their actions were malicious and conveyed the false idea that the entire project had been devised by the plaintiff. The company also considered that Greenpeace India acted maliciously when it portrayed TATA as a demon in the video game.

Furthermore, the plaintiff argued that the defendants’ effort to convince the world that the Dharma Port Project endangered the life of Olive Ridley Turtles was ostensibly false. To support this, the plaintiff relied upon a May 7, 2000 order “whereby the Environment Appellate Authority had specifically upheld the environment clearance, granted to the project, (by the Central Government, on 4th January, 2000) after going into all aspects of the issue” [para. 12]. 

Likewise, the company held that the mode in which the defamation was undertaken was objectionable to a higher degree since the widespread reach of the internet “means that any defamatory or libelous material posted on it, causes greater damage and harm to the injury of the subject” [para. 14].

Finally, the plaintiff considered that the use that the defendants made of TATA’s trademarks amounted to a trademark infringement according to Section 29 (4) of the Trade Marks Act from 1999, by which the “use” of a trademark is not exclusively confined to commercial activities but also to speech or representations that can tarnish the plaintiff’s mark. 

For its part, Greenpeace India claimed that the suit was a strategic lawsuit against public participation (also known as a SLAPP) intended to intimidate or censor the defendant, and other parties “who are concerned with the negative impact of the Dhamra port project, has on one of the largest nesting grounds for the Olive Ridley Sea Turtle” [para. 16]. This defendant argued that the damages sought by TATA had no basis or justification and that its own criticism against the port project was honest and in bona fide.

Greenpeace India argued that its claims against TATA and the Dhamra port project relied on a report by the magazine “Scientists” —that voiced concern about the port’s negative impact on the environment—, and a 2004 report in which the Central Empowered Committee recommended that the port be located at an alternative site, as the present site “would seriously impact the Olive Ridley Turtles” [para. 18]. The defendant also held that there was a pending proceeding before the Supreme Court of India, in which three reputed environmentalists raised concerns, through a legal application, about the port’s negative impact on turtles. 

The defendant submitted that its use of TATA’s trademarks did not amount to trademark infringement, “as it is not commercial usage, meant to profit or gain from the goodwill or reputation of such marks” [para. 20]. According to Greenpeace India, section 29 (4) of the Trade Marks Act 1999, allows the use of registered trademarks for the purposes of criticism, parody, and fair comment. Furthermore, the defendant also held that “terms and expressions, in a defamation case, are not to be seen in isolation of their context, and the Court must allow a certain latitude to the author or maker who is exercising his right to free speech or fair criticisms in regard to matters of public concern” [para. 22].

According to Greenpeace India, following the precedent set in Bonnard v. Perryman, [1891] 2 Ch 269, in libel and defamation cases, courts must exercise exceptional caution when interfering with freedom of expression by way of injunction. 

Greenpeace International argued that “its arrangements with Greenpeace India are such that the latter takes independent decisions and is autonomous from the International organisation” [para. 25]. As such, this organization also said that it did not publish the objectionable game and website and could not be held responsible for the actions and publications of Greenpeace India. 

The Court began its reasoning by recalling the precedent laid out in Bonnard, which was widely and systematically applied in subsequent decisions such as Fraser v. Evans, [1969] 1 QB 349, Crest Homes Ltd. v. Ascott, [1980] FSR 396, Herbage v. Pressdram Ltd., [1984] 1 WLR 1160, Holley v. Smyth, [1998] QB 726, Martha Greene v. Associated Newspapers Ltd., [2004] EWCA Civ 1462. According to the Bonnard rule, the Court explained, “in an action for defamation a court will not impose a prior restraint on publication unless it is clear that no defence will succeed at the trial. This is partly due to the importance the court attaches to freedom of speech” [para. 28].

Following this, the High Court of Delhi held it would be unreasonable to fetter freedom of expression —through an interim injunction that restrains the publication of allegedly defamatory material or awards damages— without a full trial in which the parties “can argue in detail with the help of additional evidence” [para. 29]. 

The Court then proceeded to analyze whether in light of the facts it was reasonable to grant the injunction requested by the plaintiff, given the legal framework set by the Bonnard rule.

Contrary to what was argued by TATA, to whom the defendant knowingly and in mala fides indulged in falsehood, the Court opined that this was not as easily deduced, considering that Greenpeace India was not alone in expressing concerns “about the alleged or potential destruction about the Olive Ridley turtles’ habitat and nesting grounds” [para. 34]. The facts were that environmental experts had levied, in the past, criticism against the Dhamra Port and sought to intervene in legal proceedings before the Supreme Court. Thus, the defendant’s concerns seemed, for the Court, to be genuine beliefs backed by information provided by others. 

The Court also stated that the portrayal of the plaintiff as a demon does not amount to a mala fide expression. For the Tribunal this expression appears to be hyperbolic and exaggerative. Hyperbolic and exaggerated forms of speech, following the precedent laid out in cases such as Texas Beef Group v. Winfrey, 201 F.3d 680 and Peter Scalamandre & Sons, Inc. v. Kaufman, 113 F.3d 556, 562, do not “entitle a plaintiff claiming injunction against defamation” [para. 34]. Such protection of this form of speech also means that it does not entail actual malice.

The Court then studied the merits of the plaintiff’s argument regarding the likelihood and the magnitude of a potential injury, and the need for an injunction, in light of the internet’s wide viewership. For the High Court of Delhi, following the rule set in Barrick Gold Corp. v. Lopehandia, 2004 CanLII 12938 (ON C.A.), publications on the internet do not call for a different standard when it comes to considering a claim for injunction. While recognizing that indeed the internet had greater accessibility to a larger audience, the Court noted that “the libel’s wider reach and viewership, has to be considered as an additional factor, while assessing damages. However, the judgment is not an authority to say that internet libels or cyber libels call for application of a different injunction standard, other than the Bonnard rule” [para. 39]. The Court believed that adopting an argument contrary to this would also entail some form of anomalous discrimination between mediums of expression when it comes to granting injunctions restraining publications. 

The High Court of Delhi then analyzed the plaintiff’s argument about a potential trademark infringement. The Court noted that a textual reading of Section 29 (4) of the Trade Marks Act of 1999 makes it clear that this provision could be breached “when another commercial/entrepreneurial body is exploiting that same trademark” [para. 40]. The Court then highlighted that the defendants are not involved in any similar or competitive profit making endeavor in relation to the plaintiff.

The Court found Greenpeace India’s argument persuasive regarding the legitimate use of trademarks to “make reasonable comment, ridicule, and parody of the registered trademarks” [para. 40]. Considering this, the Tribunal mentioned Boehringer Ingelheim Ltd and others v. VetPlus Ltd., [2007] EWCA Civ 583 in the UK Court of Appeal. According to this decision —which follows the reasoning behind the Bonnard rule—, in cases of trademark infringement, a “man who finds his trademark disparaged by a rival trader in a comparative advertisement can obtain a prior restraining order only if he can show that it is more likely than not that the disparagement is wrong and misleading. Unless he can do that, then his rival, both for his own commercial interests and in the interests of the public, ought to be free to say that which he honestly believes” [para. 40].

The Tribunal considered that Greenpeace India used the plaintiff’s trademarks to draw attention to the activities of TATA and “to convey their concern and criticism of the project and its perceived impact on the turtles habitat” [para. 42]. Similarly so, the Court argued that describing TATA as demonic was not only hyperbolic but also parodic. The Court held that, following the precedent laid out in Laugh It Off Promotions CC v. Freedom of Expression Institute, (2005 ZAC 7; 2006 (1) SA 144 (CC) and Louis Vuitton Malletier S.A. v. Haute Diggity Dog LLC; 507 F.3d 252, using trademarks “as the object of a critical comment, or even attack” [para. 41] is a due cause that excludes any trademark infringement. 

The Court commented that the Bonnard rule awarded a high level of protection to freedom of expression “and its salutary catalyzing effect on public debate and discussion on issues that concern people at large” [para. 43]. For the Tribunal, the defendant’s online video game sought to address an issue of public concern such as the environmental impact of an industrial project on marine species like turtles. 

Having gone through this analysis, the Court dismissed the plaintiff’s application for an interim injunction, since it was not clear that the defendant was bound to fail in trial. The Court concluded that granting the injunction “would freeze the entire public debate on the effect of the port project on the Olive Ridley turtles habitat. That, plainly would not be in public interest” [para. 43].

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