Sanskriti v Communications (Fiji) Ltd [2005] FJHC 151; HBC0560.2004 (22 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0560 OF 2004

BETWEEN:

SANSKRITI
DR VIVEKANAND SHARMA
PLAINTIFFS

AND:

COMMUNICATIONS (FIJI) LIMITED
1ST DEFENDANT

VIVEK ANAND SHARMA
2ND DEFENDANT

Ms R. Singh for the Plaintiffs
Ms B. Narayan for the Defendants

DECISION

On 23rd December 2004 the plaintiffs filed a writ of summons and an ex-parte motion (made inter-parte on my directions) together with an affidavit in support of the summons. By this summons the plaintiffs sought four separate injunctions. The effect of the four orders sought is to prevent until hearing and determination of this action or until further order the presentation by the first defendant of the radio programme called “Sanskriti” by the second defendant.

The plaintiff alleges in his affidavit that he is a well known personality being well qualified, having lectured at well known institutions including the University of the South Pacific and has held positions of responsibility in certain organisations. He alleges that the first plaintiff is a family business and publishes and distributes a magazine called “Sanskriti”. He says that from 31st March 2004 to 20th October 2004 he presented a religious programme on Wednesdays on first defendant’s radio station called ‘Radio Sargam’. From 27th October 2004 he says the first defendant engaged the second defendant to present the same programme but renamed it “Sanskriti”. He says the second defendant is not a well known Hindu priest. By presenting the programme as “Sanskriti” and using the second defendant, the defendants are trying to pass off the programme as that of the plaintiff and it is calculated to deceive the public especially the Hindu community because of the similarity in names of the programme to that of his magazine and the announcer’s name being same as his. He alleges that this has resulted in irreparable damages being caused to the first plaintiff’s business and tarnished the good name and reputation of the second plaintiff.

The defendants have filed their defence and an affidavit in reply. The allegations are vehemently denied. They deny that the second plaintiff is the National President of Sri Sanatan Dharam Pratinidhi Sabha and say that the second defendant is the Vice President of the said organisation. They also deny that the second defendant is not a renowned Hindu Priest and instead assert that he is a well known Hindu Priest holding posts in reputable organisations which are named.

They say that the “Sanskriti” programme is not wholly religious but is a cultural programme but elements of Hindu religion filter through. The defendants depose that its Radio programme “Sanskriti” is a popular programme while the magazine published by the second plaintiff is not. They add that “Sanskriti” programme started in April 2004 and the plaintiffs did not complain about the use of the name by the first defendant while the second plaintiff presented the programme. They also say that the word “Sanskriti” is a common Hindi word meaning culture.

The Court of Appeal is Chung Exports Ltd. & John Chung v. Food Processors (Fiji) Limited – ABU 12 of 2003 at paragraph 12 stated:

“In a claim based on an allegation of passing off, the plaintiff must establish a goodwill or reputation attached to the goods in the mind of the purchasing public, a misrepresentation by the defendant to the public, and that it suffers or is likely to suffer damage by reason of the erroneous belief engendered by the defendant’s misrepresentation: Reckitt & Coleman Products Ltd. v. Borden Inc. and Others [1990] UKHL 12; [1990} 1 ALL ER 873 (HL).”

Justice Pathik in Flour Mills of Fiji Ltd. v. Visama Alta Mills Ltd. – HBC 559 p of 1993 commented that passing off is “essentially a cause of action arising out of confusion”.

Since this is an application for interlocutory injunction, the usual American Cyanamid considerations would apply which are:

(a) whether there is a serious issue or issues to be tried

(b) if so where does the balance of convenience lie

(c) whether damages would be an adequate remedy and the ability of the applicant to pay such damages.

From the affidavits filed it is clear that both the second plaintiff and the second defendant are well qualified persons to speak on Hindu religion and culture. It is a coincidence that they both have the same name. It is indeed ironical that two persons one of them supposedly the President and the other the Vice President of Sri Sanatan Pratinidhi Sabha of Fiji and as such would be keenly interested in promulgating and popularising Hindu religion and culture have to resort to these proceedings to resolve an impasse.

Be that as it may, I find there are certain serious issues which are raised in the affidavits and which assert material contradictory facts. The issues raised are when in fact did the first defendant commence the Sanskriti programme. The parties have given different dates. The second issue is did the second defendant present the “Sanskriti” programme without objection or was he presenting a programme called “Sri Hanuman Mahima”. Even the popularity of the magazine Sanskriti is questioned by the defendants. These are serious issues which cannot be resolved by affidavits given the contradictory nature of allegations made and which are relevant to passing off action. The nature of the word “Sankriti” is also an issue.

I now move on to consider the balance of convenience. It is clear that the “Sanskriti” magazine has been in existence since 1998 and the radio programme “Sanskriti” is a relative late comer that is 1st April 2004 if the defendants are correct or 27th October 2004 if the plaintiff is correct in their assertions. Beyond the fact that the magazine has been published since 1998, the affidavits do not disclose the extent of its popularity nor give sales nor the diminution of sales figures if any. I also do not lose sight of the fact that the plaintiff is engaged in the business of a magazine publishing and sales while the defendants business is that of radio broadcasts so the damages if any are likely not to be large as they would not be competing for identical source of business. I also have to consider one other factor and that is the interests of third parties. Both these parties perform a useful social function in informing and I suppose entertaining the Hindu community in particular. The plaintiff provides entertainment and information at a price while the defendant provides these free to anyone who cares to listen. If I grant the injunction, I would be removing a source of free entertainment and information of cultural value to these people some of whom may be too poor to afford other form of entertainment who may be deriving joy from listening to these programmes.

I am not satisfied as to the nature of undertaking as to damages without any supporting evidence of financial worth of the plaintiffs. Seeking injunctions is a serious matter and proper undertakings as to damages ought to be provided if a court is to act upon it. In Sailosi Saqalu & Others & TFI Bulldozing Company Limited v. Arula Investment Company Limited – ABU0067 of 2000 the court of Appeal at page 3 stated:

“A party giving an undertaking as to damages needs to provide evidence of its financial position with reasonable particularity or run the risk of its undertaking will not be regarded seriously”.

The first plaintiff is a business name. The registered company which operates this business is Prashant Publishing & Recordings Limited. The legal entity with capacity to sue is Prashant Publishing & Recordings Limited not Sanskriti. The plaintiffs ought to consider this aspect before matter is put for trial.

Considering all these factors and the overall justice of the case I remain unpersuaded that an interlocutory injunction ought to be granted. Accordingly the plaintiffs’ application is dismissed with costs which I summarily fix in the sum of $300.00 to be paid in fourteen (14) days.

[ Jiten Singh ]
JUDGE

At Suva
22nd June 2005