The latest Delhi High Court ruling in the Indospirit Beverages vs Ravi Mohan Studios case might as well have Barney Stinson scratching his head, since the law body has barred a Tamil film from using the ubiquitous pop culture phrase "Bro Code" as its title. Why? Because a liquor company registered those two words as a trademark in India back in 2015.
If you are into the occasional "drinking business" in the past decade, you might have heard of the drink Bro Code. They come in almost deceptive camouflage packaging to resemble the humble beer, but one sip, and most seasoned beer connoisseurs would have felt the same thing I felt—instant regret.
The second reflex would be to turn the bottle to see the ingredients label, only to be greeted by an even more rude awakening. Bro Code is a brut—a sparkling wine—with enough alcohol content to equal a good 4-5 bottles of beer.
Of course, Bro Code has cultivated its own following over the years. Youngsters who never warmed up to the "bitterness" of a barley or wheat brew found it welcoming, a gateway drink into a habit that has moviemakers and excise departments working overtime to provide disclaimers for.
But that is beside the point. The recent Delhi High Court case and the judge's comments invite more deliberation on the topic. By not letting a Tamil movie use the word "Bro Code" as its title, will Indians—especially millennials—lose access to the phrase? What are its broader implications?
Last month, a single-bench Delhi High Court passed an interim order restraining the film production house helmed by actor Ravi Mohan from using "Bro Code” for its upcoming film. The case? Indospirit Beverages vs Ravi Mohan Studios.
The court had then reasoned that Indospirit's brand has "goodwill and reputation"—in a sense, yes. But no one ever used "Bro Code" in popular speak to refer to the drink unless they are at a bar counter or planning to get plastered with insane alcohol content.
But that did not stop the single bench of Justice Tejas Karia from granting interim relief to trademark owner Indospirit Beverages on October 30.
What followed was a division Bench consisting of Justices C Hari Shankar and Om Prakash Shukla issuing a notice today (November 12), allowing a virtual appeal by Ravi Mohan Studios.
Of course, the two-judge Delhi Court bench did call out Indospirit's claim, asking, "If it is an infringement, you will have to tell us under which subsection of Section 29 this falls… There is not even a prima facie observation on any of these four conditions in the order."
However, the two-judge bench did not stay the injunction on Ravi Mohan's film studio, stating that doing so would make the ongoing suit "infructuous". It then listed the matter for final disposal next month, on December 5.
Indospirit Beverages did not invent Bro Code
Infructuous or not, the matter has long-standing implications.
First of all, Indospirit Beverages did not invent "Bro Code". The phrase has been around for too long, finding its way to 1990s and 2000s famous American sitcoms like Seinfeld, How I Met Your Mother, and countless Hollywood blockbusters.
But, apparently, your right to use culturally embedded phrases now depends on who registered them first in India's trademark office.
The phrase "Bro Code" was popularised in the global lexicon by Barney Stinson, the fictional character played by Neil Patrick Harris in How I Met Your Mother, who turned "Bro Code" friendship etiquette into comedic gold. Books have used the phrase. Memes have used it. Yet a Delhi-based beverage company with a carbonated wine-in-a-pint bottle product gets to claim ownership of it in the country?
Imagine, going forward, if the court rules in favour of the alcohol film, as as a filmmaker wanting to reference "Bro Code", you're stuck.
If you're a YouTuber creating content about male friendship rules with that title, it could become potentially problematic.
If you're a music artist recording a song called "Bro Code", what is stopping you from getting slapped a cease-and-desist order? And just like that, common colloquialisms will be off-limits because of corporate trademark law.
Plus, if you have ever tried to register a wordmark at the Office of the Controller General of Patents, Designs and Trade Marks (CGPDTM), they would tell you that it is close to impossible to register common words unless you do a bit of creative categorisation. Yet, according to the original court document, Indospirit Beverages has managed to register "Bro" and "Code" together with its many variations.
Today, an alcohol company owns "Bro Code". What if, tomorrow, an apparel brand claims "Girls' Night Out"? Or a refrigerator brand claims "Break the Ice"? Once we start privatising phrases embedded in global pop culture, where does it stop? Where is the line?
Of course, Ravi Mohan can still make the film with a different title. That could be the pragmatic way out here. But, we have to address the elephant in the room... Does a common pop culture phrase's cultural weight matter less than trademark paperwork?