Saturday, May 29, 2010

Copyright Act, 1957

Section 45
Section 19
Copyright Rules, 1958
Rule 16(3)

Held:
Nothing about the evidence relating to the certificate issued by the Registrar of Trade Marks under section 45 of the Copyright Act, 1957 has been submitted. It is evident that application under number 609245 dated 12th October, 1993 of the petitioner herein for mark PARAKH was published in Trade Marks Journal No. 1218(Suppl) dated 8th March, 2000. In face of this fact, any certificate issued by the Registrar of Trade Marks, if any, as to there being no application pending of similar mark or deceptively similar mark does not support the cause of the respondent in relation to the impugned registration. In face ofTM-5 opposing trade mark registration number 1078627 filed by the petitioner herein dated 21.4.2004 under notice to the petitioner, there is inescapable conclusion that on or about that date, respondent was aware about the interest of the petitioner in the impugned subject matter which is relatable to the same subject matter. Though the application for the impugned registration was filed on 12.11.2003, but the registration thereof was issued 8.4.2005. Hence, there was a statutory duty cast upon the respondent to serve a notice under rule 16(3) of the Copyright Act, 1957 upon the petitioner at all relevant time till the registration was granted. Learned counsel for the respondent has heavily relied upon the Deed of Assignment and the affidavit of Shri Kishan Lai. Affidavit of Shri Kishan Lai dated 6th September, 2008 executed at Varanasi is drawn upon a Rs. 10 stamp paper bearing the place of origin and as such issue as West Bengal printed in Bengali, Hindi and English. Operative part of the Deed of Assignment is Part A thereof. It is in relation to trade mark PARAKH. Again, throughout the deed, the transaction relating to assignment of trade mark has been narrated. There is no whisper of artistic work or copyright relating thereto. Trade mark and copyright are two distinct intangible property rights - one cannot be taken in substitution of the other. IfDau Dayal had created the work for Shri Kishan Lai, there should be a deed of assignment therefore in terms of section 19 of the Copyright Act, 1957 in favour of Shri Kishan Lai as assignee. There is none. Name of the artist mentioned in column 7 of the impugned certificate of registration is "RADU DAYAL", name of the applicant is "RAM NAGAR KHADI GRAMODYOG VIKASH SAMITI". No deed of assignment by Shri Radu Dayal in favour of the applicant, the Samiti has been produced. The deed of assignment exhibited as from Shri Dau Dayal is no deed of assignment of copyright. First owner of copyright is the creator, an individual, of the artistic work. He can assign the work in writing in terms of section 19 of the Copyright Act, 1957 even to a corporate person. The deed of assignment produced is not valid one - rather there is none.

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