With the subject of freedom of speech being in the forefront after the consistent attack on Republic TV by Maharashtra government, a Delhi High Court order earlier this year raises several questions in this matter. On July 30, the High Court passed an order asking satire site the Fauxy to take down a satire video, which itself was based on a satire article by a different website, saying that the video had infringed upon the trademark of beer brand Budweiser, and tarnished its image. There are several issues in the order, especially the arguments of the beer maker, which seems to have been accepted by the court for the time being.
Background of the case
On 8 May 2020, satire website foolishhumor published an article claiming that one employee of Budweiser has acknowledged that he has peeing into beer tanks for 12 years. The satire article said that the employee wanted to clear up any doubt about taste of Budweiser, and stated he’s been doing this for more than a decade just before bottling.
This report was widely shared on social media, and it suddenly went viral on 2nd July in India. The viral content was a screenshot of the title of the foolishhumor, which didn’t indicate that it was a satire. Some people believed it to be true, others figured out it was fake, but it was widely shared. But as happens with such viral content, people found out the source of the screenshot and found out that it was fake. Soon, it was fact-checked by both fact-checking sites and mainstream media houses, which clarified that the news was not true and it was satire.
The satire article by foolishhumor didn’t come out of nowhere, it was based on a widespread belief that Budweiser beer does not taste good. A large number of people criticise the taste of the beer. A 2016 article on Washington Post says “Budweiser is a tasteless concoction that you sometimes order because the only alternative is drinking NOTHING, and that would be unbearable.” Author Alexandra Petri then went on to add, “The most important difference between Budweiser and chilled urine is that I hear some people on the Internet drink the latter on purpose for fun.”
Budweiser beer is regularly added in the list of beers with worst taste, and the article by foolishhumor sought to explain its perceived bad taste, which was nothing but a joke.
Few Indian media sites, like the Hans India, fell for the satire and published a report titled ‘you will stop drinking Budweiser beer after reading this’. The report reproduced the content of the foolishhumor article, failing to mention that it was a satire website. Hans India later updated the article to mention that source of their report was satire.
After the article went viral, Indian satire website The Fauxy did a satire video based on the same. In the video made in the format of a news report, actress Apala Bisht played the role of a news anchor saying that the Fauxy reporter Rishav Sharma did a fact check on the reports that Budweiser beer contains urine. It then shows Rishav Sharma drinking Budweiser beer, and ‘urine’ from a bottle. After drinking both, he concludes that the report is fake and the beer does not contain urine, because the beer tastes worse than urine.
The trailer of the video can be seen in the tweet above, while the linked YouTube video is no longer available after the court order.
The arguments against The Fauxy
Although the satire video concluded that the beer does not contain urine, while continuing with the theme that the beer does not taste good, the company was not happy with it, and they filed a case against it at the Delhi High Court. The company listed actors in the video Apala Bisht and Rishav Sharma, the owners of Fauxy, Twitter and Youtube as defendants in the case.
While it is not known whether the company filed any case against the original article by foolishhumor, probably not because the article is still available online, they accused the Fauxy video of trademark infringement and defamation.
Some of the claims made by the company are shocking, and actually not based on fact. They argued that the “trademark rights of the plaintiff have been infringed and its reputation tarnished by the defendants posts on social media including Twitter and YouTube which perpetrate fake news stating that the employees of the plaintiff have been urinating in the beer sold to its customers.” This is completely untrue, the Fauxy video didn’t say that Budweiser employees are urinating in the beer. In fact, the video debunked that claim, in a humorous way, while the claim was made by another satire site foolishhumor, and was reproduced by social media users and some other media houses.
It is bizarre that The Fauxy was accused of making a claim that it didn’t made, and in fact had debunked that. If the company was offended by the claim, they should be gone after foolishhumor, not Fauxy.
The company also argued that the video which was uploaded on YouTube didn’t carry the disclaimer that it is a “fake news”/ fictitious report. But all videos by the portal contains a link to its website, which clearly mention that it is a satire web portal. Moreover, it is evident from the video that it was a joke, and nobody will assume it to true.
In another bizarre accusation by the company, the petition by Budweiser also actually cites media reports clarifying that the foolishhumor report was satire to claim that the reports are spreading the fake news. It quotes a news report by NDTV referring to a news item “Budweiser admits several employees have been pissing into their beer tanks for years”.
The report by NDTV was titled “Budweiser Trends High On Twitter, Find Out Why”, and it clearly said that it was a fake report. The report sought to explain why Budweiser was trending on Twitter in India, and cited the reason as the foolishhumor satire article, and contained a link to the article and the title.
Therefore, NDTV didn’t spread fake news this time, they clarified Budweiser was trending due to a satire article. But shockingly Budweiser accused the controversial media house of spreading the fake news.
The company also mentioned in the plea that satire is no defence in the context of Indian law. They also stated that Twitter, YouTube and Instagram are also responsible for the video, despite it is well known that these platforms can’t decide what content is uploaded by their users.
The claim of copyright infringement
The argument by the company that the video infringes upon the trademark is also questionable, and the same Delhi High Court had ruled in favour of such parody using known trademarks in the Tata vs Greenpeace case. In that case, Tata had objected to a game released by Greenpeace titled Turtle vs Tata, where a Tata logo was depicted along with Olive Ridley Turtles. The game, released as part of a campaign against Dharma Port Project which was being developed by Tata Sons and L & T, also had reference to “Tata demons”. The Tata group had filed a case against the game, alleging copyright infringement.
The Delhi High Court had refused to grant an injunction against Greenpeace, citing the “Bonnard rule”. Delhi High Court had held that the use of the mark by Greenpeace was not in the course of trade, since it was not in the same line of business as Tata. Further, the usage of the trademark by Greenpeace was merely a promotional activity to draw consumer and public interest to its activity, hence it was merely denominative in nature. Thus, it amounted to fair use in Trade Mark law.
The same argument applies to the Fauxy video, as it is not in the same business as Anhueser Busch Llc, and it was not using the video to promote a beer brand. Moreover, it was referring to an already widespread claim based on a satire article. Therefore, use of the Budweiser brand in the video should come under fair use, and should not be considered a trademark infringement.
Despite such flawed arguments by Anhueser Busch Llc, the company that owns the Budweiser brand, Delhi High Court accepted their petition and passed an interim order directing that the video should be taken down from YouTube, Twitter and any other online platform. The court has issued summons to the actors in the video, Fauxy, Twitter, YouTube and Instagram to submit written statements and affidavits. 14th December has been set as the last date to submit the documents at the court.
