Sri Lanka’s CHC grants interim injunction to Lex Sportel Vision against use of DSport by Discovery: Report
For the unaware, in Sri Lanka, the European feed of Eurosport has been available on Dialog TV and others from a long time ago.
Sri Lanka’s Commerical High Court last month granted an interim injunction to Lex Sportel Vision preventing the use of the DSport mark in Sri Lanka by Discovery India and Singapore. Lex Sportel Vision in its plaint stated that the recent events in India and Hong Kong by Discovery led to the plaint being filed, according to a report from Lankan media.
For the unaware, in Sri Lanka, the European feed of Eurosport has been available on Dialog TV and others from a long time ago. DSport has been broadcasting in Sri Lanka since 2017 and continues to be available in this name currently in Sri Lanka while Lex Sportel Vision had to change the name of its channel to 1Sports in India.
According to Daily Financial Times Sri Lanka, Lex Sportel Vision in its plaint stated that after the sudden termination of the Channel Management Services Management, an illegal DSport channel was uplinked from Hong Kong to broadcast the contents throughout India.
LSV in its plaint stated that it was the exclusive broadcaster of DSport in Sri Lanka through Dialog TV for 2 years and that it faced an imminent threat of infiltration of the illegal DSport channel into Sri Lanka.
The Commercial High Court which has fixed the matter for hearing now on 4th September, 2020 has granted an interim injunction barring Discovery to launch DSport or a channel bearing a similar name to DSport within Sri Lanka.
According to the database of OFCA Honk Kong, as on 1st June 2020, there are four channels licensed on Apstar 7 namely D Sport, Eurosport HD, Eurosport, and 1Sports. The first and the last one belong to Lex Sportel Vision while the middle ones belong to Discovery. A few months back, both the channels were named DSport HD and DSport SD.
Discovery and Lex Sportel Vision had entered into a Term Sheet dated 22nd June 2017 called Channel Management Services wherein Lex Sportel Vision would render acquire sports content in consultation with Discovery Network Asia Pacific, produce linear feed 24*7 of the channel, manage the playout and the scheduling of the content, satellite for uplinking, among other things. Discovery on 14th October 2019 served a notice of termination of the CMS term sheet with the same being terminated on 23rd January 2020.
The dispute between both the parties took another turn when Discovery approached the Ministry of Information and Broadcasting (MIB) to rename DSport and DSport HD license to Eurosport and Eurosport HD. Lex Sportel had stated that while the channel was marketed by Discovery in India it held the uplinking license for DSport being downlinked by Discovery which was being tried to convert into ‘Eurosport’, to which it raised its objection.
Lex Sportel had written to the I&B Ministry but didn’t get any revert post which moved the Delhi High Court in 2019. Lex Sportel was granted a hearing in February 2020 by the I&B Ministry. Lex Sportel in front of Delhi High Court reiterated the fact that the name change application cannot be approved, until and unless fresh uplinking permission from the regulatory authority in Hong Kong is placed on record by Discovery.
Discovery on its part stated that since the Term Sheet was terminated Lex Sportel Vision had no locus to object to the name change application filed by Discovery. It further argued that the mark belonged to Discovery and that Discovery was merely availing services which was being discontinued.
A perusal of the affidavit by the High Court noted that the letter from OFCA HK relied upon to get the downlinking license for ‘DSport’ was Lex Sportel‟s TV program service which was part of the downlinking license application. Discovery however terminated the term sheet and sought permission to change name/logo of the DSport channel.
The main issue being that while Discovery was the owner of the trademark was as to whether continue to rely upon the uplinking permission given to Lex Sportel Vision for the channel DSport. Delhi HC had noted that if Discovery relied on the letter dated 17th January 2017 to seek name change then Lex Sportel’s submissions would be considered.
OFCA, Hong Kong letter to Lex Sportel was stated to have been part of Discovery’s initial application for a downlinking license for ‘DSport’. Discovery later on 9th October 2019 filed for the change of name from DSport to Eurosport.
Lex Sportel argued that Discovery couldn’t rely on the earlier approval for uplinking permission to change the name of the channel and that the I&B Ministry would have to ask for the placement of uplinking and downlinking permissions being placed on record.
The Ministry was granted 8 weeks’ time from 24th February 2020 to take a call on the matter with the parties free to avail legal remedy upon a decision by the Ministry. The Ministry within weeks on 9th March granted Discovery the permission to change the name of DSport and DSport HD to Eurosport and Eurosport HD post which Discovery intimated TRAI about the rebranding of DSport and DSport HD to Eurosport and Eurosport HD effective 18th March 2020.
Discovery had separately in January moved Delhi High Court against Lex Sportel Vision to grant a permanent injunction to restrain infringement of trademark DSport and attempt to market 1Sports by using the mark DSport. Lex Sportel had argued that the mark-up was registered in Discovery’s favour in India only because the said mark-up was up-linked from Hong Kong under its license, it was entitled to use the channel DSport to market 1Sports. Discovery won an interim injunction against Lex Sportel which was barred from using the mark DSport in any manner to market 1Sports.
The injunction matter was to be heard in April but didn’t happen due to COVID-19. Lex Sportel Vision was expected to challenge the Ministry’s decision but with COVID-19 inducing lockdown across the country in the following days, the courts have gone on a snooze with only urgent hearings being entertained. The tiff between Discovery and Lex Sportel is far from however with it pending at several jurisdictions.
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