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FT v. FT: An attempt to colonise the Indian Press?

FT v. FT: An attempt to colonise the Indian Press?

Author | Jai A. Dehadrai | Thursday, Jan 22,2015 8:43 AM

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FT v. FT: An attempt to colonise the Indian Press?

The Times Publishing House’s pitched legal battle with the Financial Times of UK is not merely one of commercial interests, but also of principles, with profound ramifications on the freedom of speech and expression for the Indian Press as a whole.

The very existence of the Indian Press lies in grave danger. The Supreme Court of India is faced with a landmark case that involves legal questions of such profound constitutional importance, that the outcome will not only affect every consumer of news in India, but it will also determine the future of long-established Indian newspapers.

Although the legal battle concerns two private entities, the issues that emerge have a direct bearing on the freedom of speech and expression enshrined in Article 19(1) (a) of the Constitution. This two-decade-long litigation is being fought between the multi-billion pound publishing behemoth, the Pearson Group which owns the Financial Times – UK (FTL), and the Times Publishing House Ltd.[1] which publishes a registered newspaper in India with a similar title.

The bone of contention between the two publishers is extremely straightforward. To publish a newspaper or a magazine in India, every publishing house needs to comply with the rules prescribed under the Press & Registration of Books Act; a special law enacted with the purpose of preserving and regulating newspapers published in India. Registration under this law is a mandatory requirement which confers an exclusive right upon the publisher to publish under a particular title – such as the Financial Times, a right which Times Publishing House (TPH) claims to have acquired, as far back as 1984. The paper claims to have reached a circulation of about 2 lakh copies per issue, at times.

However, the Pearson Group which is headquartered in London, claims ownership over this title on the basis of a Trade Mark which they belatedly registered in India[2], and subsequently lost[3] in a case before the Intellectual Property Appellate Board[4]. It was alleged that the FTL had acted unscrupulously, by misrepresenting facts[5] before the Indian Trade Mark Authority while attempting to register the newspaper title – ‘Financial Times.’

This assumed importance because no newspaper can be legally registered with the Trade Mark Authority, let alone published, unless the Publisher has first acquired a certificate from the requisite authority specified under the PRB Act. The Bangalore Court forcefully affirmed this view in their ruling.[6] Undoubtedly, this is perhaps the most crucial aspect of this dispute.

Admittedly, the FTL has never complied with the PRB Act, yet it seeks to carve out an exception for itself and publish a newspaper here in violation of Indian laws. Underscoring this reluctance to comply was a statement[7] made by the Managing Director of Pearson, who went on record to say that his company’s newspaper was “neither governed by Indian laws nor by the ethics prescribed by the Press Council of India or the Editors’ Guild.” Ironically, FTL claimed protection under the Indian Trade Mark laws while rejecting the Press laws that specifically regulate the publishing of newspapers in India – a colonial hangover, perhaps?

Since Independence, and even before it, the Financial Times-UK has barely had a presence in India. The paper was imported into India in miniscule numbers (at its peak about 300 copies), perhaps to buttress a future claim to the title. In the meanwhile, the domestic newspaper business in India flourished, with circulation increasing exponentially in nearly every corner of the country. The demand for more specialised papers soon emerged, and the market leaders stepped up to cater to the business community. The success of pink papers like the Economic Times and the Business Standard affirmed the view that specialised financial reporting was a profitable publishing business, and was clearly here to stay. Evidently, the lucre of this business opportunity was not lost on FT-UK, which tried myriad different ways to circumvent the PRB law and publish its content in India.  

At the heart of it, this case involves a classic but well-settled principle of law - in a situation where two statutes ostensibly conflict with each other, which of the two should prevail? Should the special law take precedence over the general law, or vice-versa? Very recently, the Hon’ble Supreme Court[8] reaffirmed the established view that a general law must yield to a special law, especially if they operate in the same field and on the same subject. Thus, there is little doubt that the PRB Act takes precedence over the Trade Marks Act, effectively protecting the rights of the domestic newspapers from encroachment by imperialistic foreign publishing giants seeking to road-roll themselves into the Indian market.

In the event that FTL manages to convince the Indian courts and obtains exclusive ownership over the Financial Times brand in India, the ramifications for publishers of other Indian newspapers with similar British names would be severe. Established names like the Statesman, Tribune and the Telegraph would become instantly vulnerable to trade mark infringement suits in India by their British counterparts. Such a bizarre situation is extremely plausible, especially given the financial exigencies that most newspaper publishers in the UK are struggling to overcome. It would be absolutely abhorrent if India’s free press were to be re-colonised by British publishers looking to make commercial gains in India, thus flying in the face of the new Prime Minister’s ‘Make in India’ vision.

It is in this context that it becomes clear why TPH is defending an expensive and protracted legal battle against the Pearson Group. It would be fair to say that commercial interests alone are not at stake. Even a cynical observer will agree that there is a larger issue involved. After all, BCCL’s flagship business paper, the Economic Times, is now an established player. It is entrenched deep into the hearts of the business community and obviously faces no threat from a belated foreign entrant. Even legally speaking, no media house, including the Times Group, can prevent FTL from entering the Indian market under a different brand-name or by partnering with an Indian newspaper under a Joint-Venture agreement – an approach they’ve been free to take. However, what is entirely unacceptable in law and fairness, is this odious sense of entitlement that FTL has towards the Financial Times brand name. If, God-forbid, the Times Group should cede control of the brand-name to FTL, it would simply pave the way for foreign media companies to bully their way into India.

Besides, the UK based Pearson Group will also have to surmount a key exception to the guaranteed Freedom of Speech and Expression, which is a fundamental right guaranteed exclusively to Indian Citizens. The PRB Act upholds this exception[9], given the inherent security risks posed by a foreign entity controlling domestic reportage. 

Whichever way this case ultimately swings, it is safe to say that the Indian Supreme Court will remain a steadfast champion of civil liberties, preserving and promoting natural human rights from the onslaught of conflicting commercial interests. Critics might argue that the constitutional guarantee of the freedom of speech is not so much for the benefit of the press as it is for the benefit of the public – but they must remain mindful that the Indian public will never accept a foreign invasion during their morning constitutional.  

[1] It is a matter of record that a few TPH shareholders also hold shares in Bennett Coleman Co. Ltd., which is India’s largest media conglomerate.

[2] In the year 1993, as per Para 40; O.S. 7087/1993 decided on 24.09.2002 in the City Civil Court, Bangalore. 

[3] The IPAB ordered the removal of Financial Times Limited’s (FTL) mark from the register as it was not able to prove use from 1948.

[4] http://www.ipab.tn.nic.in/091-2012.htm.

[5] O.S. 7087/1993 decided on 24.09.2002 in the City Civil Court, Bangalore at Para 13.

[6] Id. at Para 148.

[7] Id. at Para’s 127 & 128.

[8] (2014) 8 SCC 319, CTO v. Binani Cements Ltd.

[9] Section 5 of the Act; “Rules as to publication of newspapers’: No [newspaper] shall be published in [India], except in conformity with the rules hereinafter laid down…”

Jai A. Dehadrai

The author graduated with a master’s degree from UPenn and is attached to a judge of the Indian Supreme Court as his judicial law-clerk. His recently published book, Aequabilis, discusses landmark decisions of the former CJI, R.S. Pathak. He has an academic interest in issues pertaining to free-speech and IPR. He is not involved, in any capacity, with the FT/TOI litigation.

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