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Tag: Delhi High Court

  • HC questions government reasoning in promulgating ordinance

    HC questions government reasoning in promulgating ordinance

    NEW DELHI: Even as the government today said it would challenge any court order favouring Nimbus on deferred telecast, the Delhi High Court questioned the Centre’s reasoning in promulgating the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Ordinance.

    (Meanwhile, Prasar Bharati sources confirmed that talks held yesterday between Nimbus and Prasar Bharati over the issue had failed again. Thus, uncertainty prevailed over whether Doordarshan will get live sports feed of the India-Sri Lanka series despite the Ordinance being in force.)

    When the additional solicitor general PP Malhotra informed the court that the government had notified an ordinance making it mandatory for private channels to share the ‘live feed’ of cricket and other international sports events in India with public broadcasters Doordarshan (DD) and All India Radio (AIR), Justice BD Ahmed sought to know why the government was so swift in bringing an ordinance.

    ”The Rule of Law should not have been subverted,” he said. ”It leaves a bad taste in the mouth, when there is a subversion of judicial process,” the Justice observed, while adjourning the matter till tomorrow for further hearing.

    However, the ordinance notified yesterday was not challenged before the court.

    Malhotra said the petition of Nimbus Communications, which owns Neo Sports, should be dismissed as it had challenged the circular of the government to share the live feed under Article 19 of the Constitution as its Fundamental Right.

    Citing judgments of the Supreme Court, Malhotra said it was the fundamental rights of every citizen to view and listen the cricket match or sports events held in the country.

    After submitting copies of the ordinance, Malhotra read out the relevant portions, saying the private channel would have to share live feed with DD and AIR.

    On 23 January, the High Court had in an interim order allowed Prasar Bharati to download the feed of Nimbus Communications and telecast the India-West Indies ODI series in a delayed transmission of seven minutes on Doordarshan (DD) and permitted live commentary on AIR.

    Senior Counsel Harish Salve, appearing for Nimbus Communications, argued the government could not force any private channel to share its live feed as it was against the fundamental rights enumerated in the Constitution.

    Speaking to newspersons early in the morning before the matter came up before the High Court, I&B joint secretary Baijendranath said, ”If such an order comes from court, we will challenge it in the light of the Ordinance which has been promulgated making it mandatory for private broadcasters to share live feeds of important sports events with the public broadcaster Prasar Bharati.”

    He said there was a law of the land in force and if any broadcaster violates that it can be punished by various means including a ban.

    Nobody has challenged the ordinance and no court has passed any order in this respect, so its provisions are binding for all, he said.

    The Ordinance that was cleared by the Union Cabinet on 1 February and given Presidential assent late on 2 February has been promulgated from retrospective effect dating back to 11 November, 2005 when the downlinking guidelines had been issued. These guidelines, along with the uplinking guidelines, have now been given statutory status.

  • Delhi High Court protects ‘Zee’ trademark

    Delhi High Court protects ‘Zee’ trademark

    NEW DELHI: No other company selling anything or providing any service from now on will be able to use the trade mark “Zee”, the Delhi High Court has ruled last weekend.

    In the order passed on February 5 on a writ petition filed by c., the Court restrained the Registrar of Trade Marks of all branches from processing pending applications pertaining to trade mark “Zee”.
    The Registrar is forbidden also from advertising any further applications that may be filed pertaining to the Trade Mark “Zee” or “deceptively similar mark by any third party”, the court has ruled.

    Arvind Mohan, Executive Vice President of the Essel group told Indiantelevision.com today: “This is a landmark decision and establishes our sole right to use the brad and trade mark that the company has so painstakingly developed over the years.”

    The court has also stayed the order dated 11.9.2000 and 15.9.2000 of Registrar of Trade Mark, Mumbai, by virtue of which the company Shri Venkateshwara Group of Industries obtained the registration of trade mark or logo “Zee” for its products known as Zee Gutkha and Zee Pan Masala.

    Zee Telefilms had filed a writ petition under Article 227 invoking extraordinary jurisdiction of Delhi High Court, challenging acceptance orders directing advertising passed by Registrar of Trade Mark permitting advertisement of at least 100 trade mark applications for registered mark or logo “Zee” or deceptively similar marks filed by Shri Venkateshwara Group of Industries, which is completely violative of the statutory provisions and contrary to the law.

    Various offices of the registrar situated at Mumbai, Ahmedabad and Delhi have also been made respondents in the case, apart from the Union of India through Secretary, Information & Broadcasting and Copyright Board, New Delhi.

    The counsels for Zee, Senior Advocate Rajiv Nayyar and Prathiba M. Singh pointed out that trade mark registrars have permitted advertising of around 100 trade mark applications for registration as “Zee”, or look-alike, deceptive marks and they continue to do so despite the detailed representation made by the Zee Telefilms Ltd.

    The argued also that this is also in complete disregard to the prevailing injunction order dated September 4, 2001 of the Division Bench of Mumbai High Court against the Shri Venkateshwra Group, restraining them to use the mark Zee Gutkha or any other deceptive look-alike mark.

    Zee Telefilms Ltd. had said that they are registered proprietors and lawful owners of the trade mark in India as well as in several other countries abroad., Besides, they also own the Common Law Rights, Statutory Rights as well as Copyrights in the “Zee” logo, written in any manner whatsoever.

    Zee reminded the court that it has several channels with the “Zee” mark, which are watched by 180 million viewers out of which 120 millions are in India. In fact, the broadcaster owns the trade mark since 1992.

    The most significant of the court’s orders are that it said that “before the Registrar of Trademarks proceeds to advertise a mark registration whereof is sought, the Registrar is obliged to cause a research to be made amongst the registered trademarks as also pending applications for purposes of ascertaining, whether there are on record, in respect of same goods or services or similar goods or services, any mark identical with or deceptively similar to the mark sought to be got registered.

    “The principle of the dilution of the trademark has been extended for the mark in question. Yet, in spite thereof, Registrar of Trademarks is admitting for registration, applications by hundreds of individuals who seek registration of the trademark “Zee” for purposes of sale of their goods.”

    In the meanwhile the court restrained all branches of the Registrar of Trademarks from processing pending applications pertaining to registration of the trademark “Zee”.

    “Further injunction is issued restraining Registrar of Trademarks from advertising any further application which may be filed pertaining to the trademark “Zee”, the court ruled.

    The court also stayed the order of the Registrar under which the other respondents had been allowed to use the Zee trade mark.

    Mohan opined that a brand is one of the most valuable elements in an advertising theme, as it demonstrates what the brand owner is able to offer in the marketplace. “Brand experience develops expectations creating the impression that a brand associated with a product or service has certain qualities and characteristics that make it special or unique,” he explained.

    He said also that the court order will help the consumers stay clear of false impressions about the identity of those companies not related to Zee’s activity, that is, providing healthy entertainment on television.

  • Deferred live on DD: Nimbus to file reply 9 February

    Deferred live on DD: Nimbus to file reply 9 February

    NEW DELHI: The Delhi High Court today issued notice to Nimbus Communications on a petition by Prasar Bharati challenging the order of the single bench last week permitting telecast of the ongoing one-day cricket series with West Indies with a seven-minute deferred telecast.

    A Division Bench of the High Court headed by Chief Justice MK Sharma asked Nimbus, who own Neo Sports channel, to file their reply to the notice by 9 February.
    The petition by Prasar Bharati has contended that the order of the single judge is violative of the principle of equitable justice as it treats viewers of satellite TV differently from those who receive signals terrestrially.

    Earlier on 23 January, Justice SK Kaul had permitted Doordarshan to telecast the matches with a seven-minute deferred telecast. He had, however, permitted All India Radio to broadcast the commentary live.
    The same court had a day later asked Nimbus to deposit Rs 55 million within a week, even as it gave the marketing rights to the former because it had said it could raise almost five times more than competing public broadcaster Prasar Bharati.

    Meanwhile, the rights to market events on AIR’s 69 channels lies with Prasar Bharati, and the court will decide on the revenue sharing ratio on 10 February, when the rest of the contentious issues would also be taken up.

    The court, however, held that though Prasar Bharati could stream the matches thorough its DTH platform, it would not allow any private DTH operator to access that and show the matches.

  • Prasar Bharati moves Delhi HC against deferred live telecast

    Prasar Bharati moves Delhi HC against deferred live telecast

    NEW DELHI: A day after terrestrial broadcaster Doordarshan was granted “deferred live” telecast rights to the ongoing cricket series between India and the West Indies, Prasar Bharati approached the Delhi High Court again on the matter.

    A two-judge bench of the Delhi High Court has listed for tomorrow arguments in the appeal filed by the pubcaster against the order yesterday by a single-judge directing Nimbus, the rights holder for BCCI organized cricket events in India, to give the feed to Doordarshan with a seven-minute time lag.

    Prasar Bharati sources told Indiantelevision.com that the pubcaster’s appeal was based on the validity of the Uplink-Downlink Guidelines issued in November 2005 that perforce allows DD to get the telecast feed. The pubcaster’s argument is that the guidelines are clear that the live feed should be given to both Doordarshan and AIR and that there is “no provision (in the guidelines) for a deferred telecast.”

    Prasar Bharati has contended that viewers in the country cannot be divided into two segments and that there has to be equitable distribution of signals for all viewers, irrespective of whether they are linked to DTH, cable or non cable homes.

  • DD to telecast cricket with 7-minute time lag

    DD to telecast cricket with 7-minute time lag

    NEW DELHI: Millions of viewers who don’t have access to the Nimbus owned Neo Sports can finally heave a sigh of relief. The Delhi High Court has ruled that terrestrial broadcaster Doordarshan can telecast the ongoing cricket series between India and the West Indies “deferred live” with a seven-minute delay.

    Seven minutes on an average comprises two overs bowled on the trot. All India Radio will, however, be allowed to broadcast its commentary live, with no time lag.

    The consensus emerged after the High Court, in its order issued today, ruled that 50 million viewers (who don’t have cable TV access) cannot be denied the right to watch the game.

    The timing of the ruling is critical since it comes a day ahead of the second One-Day International to be played in Cuttack, Orissa. It may be recalled that millions of viewers missed out on the action Sunday that saw India defeating the West Indies in the first ODI that was played at Nagpur.

    While issuing his orders, Justice SK Kaul made it clear that this was an interim ruling and that the final decision about the Sri Lanka series (that follows immediately after the current four-match Pepsi series gets over) will be taken on 8 February.

    On the petition filed by Nimbus yesterday, the court asked Prasar Bharati to file its replies by 29 January, to which Nimbus will have to file its rejoinder by 1 February.

    Nimbus’ counsel argued that it would stand to lose cmmercially if Doordarshan were allowed a live feed and said DD was being adamant despite concessions offered by Neo Sports.

    Reacting to the news, information & broadcasting minister Priyaranjan Dasmunsi welcomed the decision of the court, stating it (the ruling) was only fair considering DD has “96 per cent reach in the country”.

    Nimbus Sports, the rights holders for the BCCI organized cricket events in India that it had acquired for a whopping $ 612 million, had earlier offered to give the feed to Prasar Bharati, but only under certain specific conditions, and these were not acceptable to the pubcaster.

    Nimbus had originally suggested a 15 minute deferred telecast on DD referred ‘as live’. Nimbus also did not agree to DD showing the matches on its DTH platform DD Direct Plus.

    Nimbus had said if at all it shares the feed, the signals would have to be encrypted so that it reached houses only on the terrestrial network and not those that get DD signals through cable TV.

    The talks broke down after Prasar Bharati officials, citing previous government orders and court rulings they claim had gone in their favour, said they should get live feed of the cricket series without any conditions, and that it was also to be shared on DD’s DTH platform.

    Following the breakdown of talks DD officials had gone back to taking the cover of the Uplink-Downlink Guidelines that perforce allow DD to get the telecast feed.

  • No extension on Cas deadline: I&B ministry

    No extension on Cas deadline: I&B ministry

    MUMBAI: Conditional access system (Cas) will be rolled out in the notified areas of Delhi, Mumbai and Kolkata from 31 December and no time extension is under consideration, the government said today.

    The deadline has been fixed by the Delhi High Court and there is no possibility of it being extended, an official statement from the information and broadcasting (I&B) ministry clarified.

    “In an application moved by a multi-system operator (MSO) before the Delhi high court for extension of time, the court has already taken a view that no such time extension is possible. The I&B ministry does not have the power to order any extension in the date of implementation of Cas. The transition time to run encrypted and unencrypted channels and switching off pay channel signals in unencrypted format began from 16 December and will end on 30 December,” the release said.

    The ministry was reacting to a report in a leading news daily that the deadline for rolling out Cas had been relaxed. “The report is totally misleading and baseless,” the ministry said.

    The ministry also categorically denied that it had left open a month-long window after 31 December for implementation of CAS and said that there was no question of any channel being blacked out. The I&B ministry has not filed an affidavit in the Delhi High Court seeking transition time after 31 December, it clarified.

    “In the advertisements on Cas released by the ministry from time to time in various newspapers, subscribers have been requested to apply sufficiently well in advance of 31 December for set-top boxes indicating their choice for pay channels lest their pay channels are blacked out on 31 December,” the release added.

  • Delhi High Court, Tdsat refuse to grant stay on Cas

    Delhi High Court, Tdsat refuse to grant stay on Cas

    NEW DELHI: This seems to be the last word on Cas (conditional access system). The Delhi High Court and Tdsat (Telecom Disputes Settlement and Appellate Tribunal) today made it clear in separate verdicts that Cas had to roll out on 1 January, ending the efforts of broadcasters and some multi-system operators (MSOs) to obtain a stay.

    The High Court heard arguments in two appeals clubbed together, filed before it against the roll out of Cas, while Tdsat heard appeals against the tariff rate being fixed at Rs 5 per channel as well the interconnection order by Trai, regarding sharing of revenue between the MSOs, last mile operators (LMOs), and the broadcasters.

    The Delhi High Court, refusing to grant more time to MSOs, said that there is no question of Cas not being rolled out on the notified date. It asked the two petitioners to file replies which will be heard after the court vacation ends.

    Star Broadband Services, a MSO in Delhi whose licence for operating under Cas had been cancelled by Trai in an order dated 14 December, had moved the court saying that it was getting ready for Cas roll out but needed more time.

    NGO Shakti had filed application seeking postponement on the ground that the MSOs were not yet ready with the infrastructure for Cas implementation on the due date. Hence, Cas should be postponed indefinitely.

    Meanwhile, in a separate hearing, the Tdsat declined to grant stay on an appeal filed by ESPN and SET Discovery.

    The Tdsat sat through the final arguments by Trai and MSOs and the rejoinder by the broadcasters (ESPN and SET), and asked them to file written submissions, to be taken up after the vacation, but said that nothing that would be argued or heard later would mean that Cas will not roll out on the impugned date.

    The Tdsat had been told earlier by the broadcasters’ counsels that there was no rationale in the tariff fixed and that the Chennai model, where Cas had been found to be effective without Trai intervention in pricing, had left the subscribers happy. The broadcasters held that the ‘facts’ shown by Trai and the ‘assumption’ on which they based their order were mutually contradictory.

    The counsel for SET Discovery dubbed this as non-application of mind, and said this was unacceptable when Trai is issuing such a momentous order that would govern the industry for a long time.

    The counsel for the broadcasters said that Trai’s fixing of price was based on such arbitrary assumptions that went against the survey report quoted by the Authority itself.

    The Trai senior counsel, in his argument yesterday, had caused a flutter in the court, showing that the broadcasters had completely failed in Chennai and that only 3.7 per cent of the total cable households there had opted for pay channels because the prices fixed by the pay channels were too high.

    This revelation had almost every sit up, and the judges had asked whether this means that Chennai cable homes had the option of both CAS and non-CAS operation. Trai senior counsel Rakesh Dwivedi said that was correct, and that the vast majority had not take the offer.

    Dwivedi also argued that the Chennai model in any case could not be extended to Mumbai, Kolkata or Delhi, as in Chennai, four out of the five most popular channels are FTAs, and only one of the top five is a pay channel The case is the reverse with the other three metros.

    In fact, he argued that by fixing the ratio of revenue sharing at 45 per cent, Trai had actually given the broadcasters three benefits at one go: it has got rid of underdeclaration as a perennial problem; cut out ‘piracy’ that broadcasters had accused LMOs of indulging in; and given them a 300 per cent rise in their revenues.

    He argued that the broadcasters had complained that under the present system of operations, the LMOs and MSOs retain 85 to 90 per cent of the revenue from subscriotion, and only 15 per cent reach them, and that too becomes difficult to collect. “We are ensuring them a 45 per cent share and besides, the bulk of their revenue, as they claim, from advertisements remains intact,” the Trai counsel said.

    The counsel for SET Discovery today in his rejoinder said that while Trai had the legal authority to fix the tariff, it was the manner in which that had been done that bordered on perversity.

    His argument was that the Trai had itself admitted that there was not enough material on which the fixation was based.

    The SET Discovery counsel held that Trai had been referring to a document, an IMRB survey that was two and half years old and today could not be valid, since so many FTAs have now become pay channels. He said also that the budgets of households had increased manifold and that Trai had fixed the tariff without adequacy of material to support that pricing.

    Besides, the Trai had so long not brought up the issue of the IMRB survey, which had not been mentioned in the Consultation Paper issued by Trai, nor in later discussions, and was only using it to justify a wrong decision taken without any basis.

    The SET Discovery counsel also held that the Trai itself had repeatedly admitted in the court that any price fixation is arbitrary. The price, thus, fixed could not be held to be legal.

    SET Discovery’s last plea was that Tdsat should ask Trai to undertake a fresh survey and base the new tariff fixation on that. He said that actually the price fixed should be around Rs 10 per pay channel, and that if the price is fixed now at Rs 5, then there would never be an upward revision, even if Trai held a review. Public ire would prevent that upward revision, if Trai did the review at all, which he doubted would ever happen in actuality.

  • HC adjourns Star, Sony case against Trai to 18 Jan

    HC adjourns Star, Sony case against Trai to 18 Jan

    NEW DELHI: The Delhi High Court bench hearing the case on the issue of the Telecom Regulatory Authority of India’s (Trai) constitutional standing to be a regulator was adjourned after a sizeable time spent in hearing the initial arguments from both ESPN and Sony as well as the multi-system operators (MSOs). The issue will come up for hearing again on 18 January.

    The MSOs, who are supporting Trai, were represented by Dr Abhishekh Singhvi, CS Vaidyanathan and Aryama Sundaran, whereas the boradcasters’ consel was Soli Sorabjee. ESS and Sony had moved the Delhi HC, challenging Trai’s constiutional standing.

    The court heard the initial arguments and felt that since the parties concerned have not completed filingrejoinders and counters the matter may be postponed till the next date.

    The case relates to the cable rules empowering Trai as CAS regulator. The High Court is hearing only the constituional issues on the matter and the quantum issues are beig heard by TDAST.

    Spokesperson for the MSOs refused to divulge details of the arguments as the matter is subjudice, and the counsel was not available till late evening.

    Tomorrow, hearings are slated for three cases in TDSAT. The first is on a appeal by ESPN on the August 24 order Trai of fixing tariff at Rs five per pay channel, and second is also an appeal by ESPN against the Trai order of 24 August on distribution margins for pay channels, which as per the order stand at 45 per cent for broadcasters, 30 per cent for MSOs and 25 per cent for local cable operators. The issue of Cas rule relating to signing of a standard contract is also coming up during this hearing, with the MSOs opposing the ‘forcible’ signing of a contract.

    The third case also relates to the same issues, on an appeal filed by Sony Entertainment Television.

    The Surpeme Court will hear the final arguments in the case filed by Sea TV, an affiliate of Zee Group based in Agra, on the issue of underdeclaration of the number of households by the cable operators.

    Sea TV had applied for access to Star channels two years ago, and the broadcaster had said that they had given access to Moon TV. Sea TV should get the signal from Moon TV, Star had pointed out. However, Zee had intervened saying Sea TV was bound to be given access and had disputed that an MSO (in this case the Moon TV) or an LCO can be an agent of a broadcaster, which was the genesis of the case being heard.

  • Delhi High Court issues injunction to cable operators on unauthorised telecast of India-South Africa cricket series

    Delhi High Court issues injunction to cable operators on unauthorised telecast of India-South Africa cricket series

    MUMBAI: The Delhi High Court has ruled in favour of ESPN Star Sports, the official broadcaster of the India-South Africa Series, in its suit for permanent injunction filed against 66 cable operators across the country against unauthorised broadcast of the India-South Africa Series, restraining all the cable operators from unauthorisedly showing India-South Africa Series through their cable networks.

    The channel has the exclusive right to broadcast the feeds of the international cricket matches being played by India against South Africa in South Africa by terrestrial television, cable television and / or satellite television in the countries of Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka, asserts an official release.

    After this order anyone still showing India-South Africa series through any unauthorised means or any other channel will be held in contempt of court and liable for prosecution. The Delhi High Court has also permitted ESPN to take action against all other cable operators not parties to the suit who are found to be unauthorisedly utilising the feed of ESPN and Star Sport without license.

    Elaborating on this, ESPN Software India Pvt Ltd chief operating officer Vijay Rajput said, “Carriage, reception or distribution of the India-South Africa series by any MSO, cable operator, sub-operator without written authorisation from ESPN Star Sports is a violation of Copyright Act, 1957 and hence an illegal activity.”

    “Also, no other channel, whether pay, free to air or terrestrial is authorised to provide, show or distribute the India-South Africa series in the territory of India. Also strict and legal action will be taken against the operators who violate the court orders. Post the order; police raids have already been started,” he added.

    The 66 cable operators restrained from the unauthorised telecast are from Tamil Nadu, Andhra Pradesh, Jharkand, Bihar, Maharashtra, Gujarat, Assam, Karnataka, Kerala, Chattisgarh, West Bengal, Bihar, Himachal Pradesh and Punjab.

    ESPN Star Sports will be broadcasting the ODI series in both English as well as Hindi feed. ESPN will telecast the series in English with ESPN’s a Few Good Men, Sunil Gavaskar, Harsha Bhogle, Allan Wilkins, Ravi Shastri and Wasim Akram joined in by South African Pat Symcox.

    The Hindi programming for the series on Star Sports will be spearheaded by Indian TV artist, Shekhar Suman and supported by Syed Kirmani, Wasim Akram, Arun Lal, Maninder Singh and Zaheer Abbas. The sports broadcaster has introduced special production and programming initiatives Planet Cricket, Cricket Crazy and Full Toss for the Indian audiences for the telecast of the series, adds the release.

  • CAS pricing case: TDSAT sets 12 December for next hearing

    CAS pricing case: TDSAT sets 12 December for next hearing

    MUMBAI:The Telecom Disputes Settlement & Appellate Tribunal (TDSAT) has fixed 12 December as the date for next hearing in the case filed by broadcasters against the Rs 5 tariff for pay channels set by sector regulator Trai (Telecom Regulatory Authority of India) in a CAS (conditional access system) regime.

    The Telecom Disputes Settlement & Appellate Tribunal (TDSAT) has fixed 12 December as the date for next hearing in the case filed by broadcasters against the Rs 5 tariff for pay channels set by sector regulator Trai (Telecom Regulatory Authority of India) in a CAS (conditional access system) regime.

    The pay broadcasters have challenged the two Trai notifications dated 24 August (on carriage fee) and 31 August (channel pricing). They are also contesting the revenue sharing model designed for industry stakeholders by Trai. The sector regulator had specified in the notification that the revenue generated from pay channels leaves the broadcaster with 45 per cent, while the MSOs stays on with 30 per cent and the cable operators get 25 per cent.

    Earlier this year, a division bench of the Delhi High Court had passed an order directing the implementation of CAS with effect from 31 December in the south zones of the three metros – Mumbai, Delhi and Kolkata.