Code of Civil Procedure order 39 R 1 & 2
Taking overall view of the matter, I have no hesitation in accepting the argument of the Plaintiff that the Defendants have indulged in infringement of copyright of the Plaintiff in relation to her original literary work of programme titled "Work in Progress".
Accordingly, in my view, Plaintiff is entitled to ad-interim relief also on the ground of infringement of copyright of Plaintiff's literary work in relation to programme titled "Work in Progress".
In the circumstances, ad-interim relief in terms of prayer clauses (a) and (b) of the Notice of Motion as prayed for is granted which read thus:
"a. That pending the hearing and final disposal of the suit it is absolutely just, necessary and proper that the Plaintiff is entitled to an order and injunction of this Hon'ble Court restraining the Defendants by themselves, its Directors, servants, agents and associate concerns/firms from in any manner whatsoever infringing the copyright of the Plaintiffs in the original 'literary work' being the concept note of the television programme 'Work in Progress', by directing or making or copying or reproducing the same or publishing or broadcasting or otherwise exploiting the work by making and broadcasting the television programme 'Summer Showdown', without the Plaintiff's consent so as to infringe the copyright of the Plaintiffs' in the original 'literary work' being the concept note of the television programme 'Work in Progress';
b. That pending the hearing and final disposal of the suit it is absolutely just, necessary and proper that the Plaintiff is entitled to an order and injunction of this Hon'ble Court restraining the Defendants by themselves, its Directors, servants, agents and associate concerns/firms from in any manner whatsoever breaching the confidential information imparted by the Plaintiff and contained in the concept note of the television programme 'Work in Progress', by directing or making or copying or reproducing the same or publishing or broadcasting or otherwise exploiting the work by making and broadcasting the television programme 'Summer Showdown', without the Plaintiff's consent and/or license, so as to breach the confidential information imparted by the Plaintiff and contained in the concept note of the television programme 'Work in Progress'."
Showing posts with label Copyright Act. Show all posts
Showing posts with label Copyright Act. Show all posts
Sunday, June 13, 2010
Copyright Act, 1957
Suit for perpetual injunction restraining defendants from infringing the Plaintiff's copyright in the literary work and cinematograph film embodying television game show "Titan Antakshari" being broadcast on its television channel "Zee" since September, 1993 inter-alia by defendants broadcasting the television game show "Antakshari .
Defendant No. 1 was employed with plaintiff under designation 'Consultant' on 23.7.1992 and from 1.4.1999 he was engaged by plaintiff under contract of service .
Held, relationship between the Plaintiff and the first Defendant from inception was one of contract of service - Plaintiff is not entitled to monopoly in concept of testing person's knowledge and memory of Hindi film music, it is manner in which contestant's knowledge and memory is tested, which accounts for novelty.
There is no magic in expression "concept note" and it would be necessary for Court in each case, to examine whether concept note constitutes work which is copyrightable and entitled to protection under provisions of the Act, concept note has not been established by Plaintiff .
Making of another film is not included under section 14(d)(i) and such other film, even though it resembles completely copyrighted film, does not fall within expression 'to make a copy of the film' and, therefore, does not amount to infringement of whole of copyright of first film - Passing off action can lie in case of reality show or in case of serial which involves spontaneous participation and interaction of 95 different participants in each episode – Petition disposed of.
Defendant No. 1 was employed with plaintiff under designation 'Consultant' on 23.7.1992 and from 1.4.1999 he was engaged by plaintiff under contract of service .
Held, relationship between the Plaintiff and the first Defendant from inception was one of contract of service - Plaintiff is not entitled to monopoly in concept of testing person's knowledge and memory of Hindi film music, it is manner in which contestant's knowledge and memory is tested, which accounts for novelty.
There is no magic in expression "concept note" and it would be necessary for Court in each case, to examine whether concept note constitutes work which is copyrightable and entitled to protection under provisions of the Act, concept note has not been established by Plaintiff .
Making of another film is not included under section 14(d)(i) and such other film, even though it resembles completely copyrighted film, does not fall within expression 'to make a copy of the film' and, therefore, does not amount to infringement of whole of copyright of first film - Passing off action can lie in case of reality show or in case of serial which involves spontaneous participation and interaction of 95 different participants in each episode – Petition disposed of.
Copyright Act, 1957 Section 62, 55
vis-a-vis Section 27, 106, 134, 135 of Trade and Merchandise Marks Act, 1958 r/w Order 2 Rule 2 and 3 of Civil Procedure Code, 1908 -
Composite suit - Jurisdiction of court - Defendant is resident of Andhra Pradesh, the Delhi High Court had no jurisdiction - Composite suit would not entitle a court to entertain a suit in respect whereof it has no jurisdiction, territorial or otherwise - What then would be meant by a composite suit? A composite suit would not entitle a court to entertain a suit in respect whereof it has no jurisdiction, territorial or otherwise. Order II Rule 3 of the Code specifically states so and, thus, there is no reason as to why the same should be ignored. A composite suit within the provisions of the 1957 Act as considered in Dhoda House (supra), therefore, would mean the suit which is founded on infringement of a copy right and wherein the incidental power of the Court is required to be invoked. A plaintiff may seek a remedy which can otherwise be granted by the court. It was that aspect of the matter which had not been considered in Dhoda House (supra) but it never meant that two suits having different causes of actions can be clubbed together as a composite suit.
Trade Marks, Act, 1999 - ss. 29, 30(1)(b) - Applications filed for injunction alleging infringement and passing off in respect of registered trademarks GAP, Old Navy and Banana Republic in respect of apparels . Plaintiffs raising the defence that they are doing parallel import of goods under aforesaid trademarks, for which infringement has been claimed and which were manufactured much before but were no longer in use and were intended for sale in specific country.
Use of GAPL and GAPPLE trademarks by defendants were in clear violation of s. 29(5). Defendants contended that goods were meant to be sold only in the Indian market were sourced as per Agreement. Held, defendants will not use abbreviated form of GAPL though they are entitled to use full name 'Garments and Accessories Price Less' . Defendants however can use trademark GAPPLE, but not in the same writing style or the colour combination of white on blue as identified with GAP. Further local Commissioner to inspect goods. Applications disposed of.
Composite suit - Jurisdiction of court - Defendant is resident of Andhra Pradesh, the Delhi High Court had no jurisdiction - Composite suit would not entitle a court to entertain a suit in respect whereof it has no jurisdiction, territorial or otherwise - What then would be meant by a composite suit? A composite suit would not entitle a court to entertain a suit in respect whereof it has no jurisdiction, territorial or otherwise. Order II Rule 3 of the Code specifically states so and, thus, there is no reason as to why the same should be ignored. A composite suit within the provisions of the 1957 Act as considered in Dhoda House (supra), therefore, would mean the suit which is founded on infringement of a copy right and wherein the incidental power of the Court is required to be invoked. A plaintiff may seek a remedy which can otherwise be granted by the court. It was that aspect of the matter which had not been considered in Dhoda House (supra) but it never meant that two suits having different causes of actions can be clubbed together as a composite suit.
Trade Marks, Act, 1999 - ss. 29, 30(1)(b) - Applications filed for injunction alleging infringement and passing off in respect of registered trademarks GAP, Old Navy and Banana Republic in respect of apparels . Plaintiffs raising the defence that they are doing parallel import of goods under aforesaid trademarks, for which infringement has been claimed and which were manufactured much before but were no longer in use and were intended for sale in specific country.
Use of GAPL and GAPPLE trademarks by defendants were in clear violation of s. 29(5). Defendants contended that goods were meant to be sold only in the Indian market were sourced as per Agreement. Held, defendants will not use abbreviated form of GAPL though they are entitled to use full name 'Garments and Accessories Price Less' . Defendants however can use trademark GAPPLE, but not in the same writing style or the colour combination of white on blue as identified with GAP. Further local Commissioner to inspect goods. Applications disposed of.
Copyright Act, 1957
(1) What shall be the standard of originality in the copy-edited judgments of the Supreme Court which is a derivative work and what would be required in a derivative work to treat it the original work of an author and thereby giving a protected right under the Copyright Act, 1957 to the author of the derivative work ? and (2) Whether the entire version of the copy-edited text of the judgments published in the appellants law report SCC would be entitled for a copyright as an original literary work, the copy-edited judgments having been claimed as a result of inextricable and inseparable admixture of the copy-editing inputs and the raw text, taken together, as a result of insertion of all SCC copy-editing inputs into the raw text, or whether the appellants would be entitled to the copyright in some of the inputs which have been put in the raw text ?
Held, judicial pronouncements of the Apex Court would be in the public domain and its reproduction or publication would not infringe the copyright . The High Court has already granted interim relief to the plaintiff- appellants by directing that though the respondent- defendants shall be entitled to sell their CD-ROMS with the text of the judgments of the Supreme Court along with their own head notes, editorial notes, if any, they should not in any way copy the head notes of the plaintiff-appellants; and that the defendant-respondents shall also not copy the footnotes and editorial notes appearing in the journal of the plaintiff-appellants. It is further directed by us that the defendant-respondents shall not use the paragraphs made by the appellants in their copy-edited version for internal references and their editor's judgment regarding the opinions expressed by the Judges by using phrases like 'concurring', 'partly dissenting', etc. on the basis of reported judgments in SCC. The judgment of the High Court is modified to the extent that in addition to the interim relief already granted by the High Court, we have granted the above-mentioned additional relief to the appellants.
Held, judicial pronouncements of the Apex Court would be in the public domain and its reproduction or publication would not infringe the copyright . The High Court has already granted interim relief to the plaintiff- appellants by directing that though the respondent- defendants shall be entitled to sell their CD-ROMS with the text of the judgments of the Supreme Court along with their own head notes, editorial notes, if any, they should not in any way copy the head notes of the plaintiff-appellants; and that the defendant-respondents shall also not copy the footnotes and editorial notes appearing in the journal of the plaintiff-appellants. It is further directed by us that the defendant-respondents shall not use the paragraphs made by the appellants in their copy-edited version for internal references and their editor's judgment regarding the opinions expressed by the Judges by using phrases like 'concurring', 'partly dissenting', etc. on the basis of reported judgments in SCC. The judgment of the High Court is modified to the extent that in addition to the interim relief already granted by the High Court, we have granted the above-mentioned additional relief to the appellants.
Friday, June 11, 2010
Copyright Act, 1957
Section 63
Plaintiff engaged in the business of manufacturing and marketing audio cassettes, video cassettes, compact disks, televisions, CD Players, fans, mineral water and various other products . Defendant illegally exploiting the sound recordings as well as the lyrics, musical compositions and music videos that are copyrights of the plaintiff . Defendants in continued breach of the plaintiffs copyrights and are seeking to unfairly gain an advantage over other Cable TV operators who have recognized the plaintiffs copyrights and have entered into valid public performance license agreements
HELD "I hereby restrain permanently all the other defendants, their officers, servants, agents and representatives and anyone acting for or on their behalf from engaging themselves or authorizing the public performance or communicating to the public or in any other way exploiting films, sound recordings and literary works (lyrics) and musical positions or other work or part thereof of the plaintiff."
Plaintiff engaged in the business of manufacturing and marketing audio cassettes, video cassettes, compact disks, televisions, CD Players, fans, mineral water and various other products . Defendant illegally exploiting the sound recordings as well as the lyrics, musical compositions and music videos that are copyrights of the plaintiff . Defendants in continued breach of the plaintiffs copyrights and are seeking to unfairly gain an advantage over other Cable TV operators who have recognized the plaintiffs copyrights and have entered into valid public performance license agreements
HELD "I hereby restrain permanently all the other defendants, their officers, servants, agents and representatives and anyone acting for or on their behalf from engaging themselves or authorizing the public performance or communicating to the public or in any other way exploiting films, sound recordings and literary works (lyrics) and musical positions or other work or part thereof of the plaintiff."
Sunday, May 30, 2010
Copyright Act, 1957
Section 63
Code of Criminal Procedure, 1973
Section 482
Complaint— Quashing of.
The complaint which was essentially about violation of the complainant's registered design was made to appear as if the infringements were of its trademarks and copyright
HELD "The IO appears not to have considered either Section 15 (2) of the Copyright Act or the relevant provisions of the Designs Act, 2000 or the fact that the Respondent No. 2 in fact holds the registration of the design in respect of its products. Respondent No. 2 admittedly held four registrations under the Designs Act in respect of the product in question even as of that date. Under Section 15 (2) of the Copyright Act, a copyright granted in respect of a product for which a registration has been granted under the Designs Act, would cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright. There can be no manner of doubt that the product of Respondent No. 2 has been reproduced more than 50 times. Therefore, any copyright in such design would cease by operation of law. "
In the considered view of this Court, the FIR and chargesheet when examined as a whole do not even prima facie make out a case for violation of the Copyright Act 1957. In other words, the offence under Section 63 of the Copyright Act is not even prima facie attracted. FIR and all proceedings consequent thereto, quashed.
Code of Criminal Procedure, 1973
Section 482
Complaint— Quashing of.
The complaint which was essentially about violation of the complainant's registered design was made to appear as if the infringements were of its trademarks and copyright
HELD "The IO appears not to have considered either Section 15 (2) of the Copyright Act or the relevant provisions of the Designs Act, 2000 or the fact that the Respondent No. 2 in fact holds the registration of the design in respect of its products. Respondent No. 2 admittedly held four registrations under the Designs Act in respect of the product in question even as of that date. Under Section 15 (2) of the Copyright Act, a copyright granted in respect of a product for which a registration has been granted under the Designs Act, would cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright. There can be no manner of doubt that the product of Respondent No. 2 has been reproduced more than 50 times. Therefore, any copyright in such design would cease by operation of law. "
In the considered view of this Court, the FIR and chargesheet when examined as a whole do not even prima facie make out a case for violation of the Copyright Act 1957. In other words, the offence under Section 63 of the Copyright Act is not even prima facie attracted. FIR and all proceedings consequent thereto, quashed.
Copyright Act, 1957
Section 52(l)(m) — Copyrights of scripts, books, publications re-publication of the works of E.V. Ramasami (Popularly called as Periyar)
HELD
The author of Kudiyarasu, i.e. Late Periyar, was the owner and the articles published in the newspapers mostly related to the then existed economical, political, social and religious topics. Therefore, unless the author had expressly reserved his right of reproduction, no copyright will vest with anyone as reproduction of such articles cannot constitute an infringement of copyright as per Section 52(l)(m) .
Reproduction in a newspaper, magazine or other periodical . Unless the author had expressly reserved his right of reproduction, no copyright will vest with anyone as reproduction of such articles cannot constitute an infringement of copyright . Copyright in literary materials can only be an intellectual property and there has to be material to show that it was specially assigned—No written or other materials to show that a copyright reserved by author of those articles and that he also assigned it in favour of the plaintiff . Unless it is shown that they intend to reproduce pre-existing works, an order of injunction cannot be granted on the basis of apprehension and unsubstantiated allegations . Plaintiff failed to establish any ownership of the copy right in their favour and a corresponding infringement of copyright on the part of the respondents. Application for interim injunction, dismissed.
HELD
The author of Kudiyarasu, i.e. Late Periyar, was the owner and the articles published in the newspapers mostly related to the then existed economical, political, social and religious topics. Therefore, unless the author had expressly reserved his right of reproduction, no copyright will vest with anyone as reproduction of such articles cannot constitute an infringement of copyright as per Section 52(l)(m) .
Reproduction in a newspaper, magazine or other periodical . Unless the author had expressly reserved his right of reproduction, no copyright will vest with anyone as reproduction of such articles cannot constitute an infringement of copyright . Copyright in literary materials can only be an intellectual property and there has to be material to show that it was specially assigned—No written or other materials to show that a copyright reserved by author of those articles and that he also assigned it in favour of the plaintiff . Unless it is shown that they intend to reproduce pre-existing works, an order of injunction cannot be granted on the basis of apprehension and unsubstantiated allegations . Plaintiff failed to establish any ownership of the copy right in their favour and a corresponding infringement of copyright on the part of the respondents. Application for interim injunction, dismissed.
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.
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.
Thursday, May 20, 2010
Copyright Act, 1957
Section 50
Copyright Rules, 1958
Rule 16 read with Form IV
Held: It is now well settled that mechanism envisaged under rule 16, read with Form TV, of the Copyright Rules, 1958 as further strengthened through amendment in 1992 envisage a protection of infrastructure which is in substitution of publication of application and right to opposition provided under the Trade Marks law since ages. Courts have repeatedly held that in matter of disputes relating to labels, marks, etc., it is not that issues relating to the rights of the private persons are only involved. Public at large has a stake in these issues. For that reason, maintenance of the purity of register is emphasized time and again.
Copyright Rules, 1958
Rule 16 read with Form IV
Held: It is now well settled that mechanism envisaged under rule 16, read with Form TV, of the Copyright Rules, 1958 as further strengthened through amendment in 1992 envisage a protection of infrastructure which is in substitution of publication of application and right to opposition provided under the Trade Marks law since ages. Courts have repeatedly held that in matter of disputes relating to labels, marks, etc., it is not that issues relating to the rights of the private persons are only involved. Public at large has a stake in these issues. For that reason, maintenance of the purity of register is emphasized time and again.
Copyright Act, 1957
Section 50
Copyright Rules, 1958
Rule 16 read with Form IV
Held: It is now well settled that mechanism envisaged under rule 16, read with Form TV, of the Copyright Rules, 1958 as further strengthened through amendment in 1992 envisage a protection of infrastructure which is in substitution of publication of application and right to opposition provided under the Trade Marks law since ages. Courts have repeatedly held that in matter of disputes relating to labels, marks, etc., it is not that issues relating to the rights of the private persons are only involved. Public at large has a stake in these issues. For that reason, maintenance of the purity of register is emphasized time and again.
Copyright Rules, 1958
Rule 16 read with Form IV
Held: It is now well settled that mechanism envisaged under rule 16, read with Form TV, of the Copyright Rules, 1958 as further strengthened through amendment in 1992 envisage a protection of infrastructure which is in substitution of publication of application and right to opposition provided under the Trade Marks law since ages. Courts have repeatedly held that in matter of disputes relating to labels, marks, etc., it is not that issues relating to the rights of the private persons are only involved. Public at large has a stake in these issues. For that reason, maintenance of the purity of register is emphasized time and again.
Copyright Act, 1957
Section 50
Copyright Rules, 1958
Rule 16 read with Form IV
Held: It is now well settled that mechanism envisaged under rule 16, read with Form TV, of the Copyright Rules, 1958 as further strengthened through amendment in 1992 envisage a protection of infrastructure which is in substitution of publication of application and right to opposition provided under the Trade Marks law since ages. Courts have repeatedly held that in matter of disputes relating to labels, marks, etc., it is not that issues relating to the rights of the private persons are only involved. Public at large has a stake in these issues. For that reason, maintenance of the purity of register is emphasized time and again.
Copyright Rules, 1958
Rule 16 read with Form IV
Held: It is now well settled that mechanism envisaged under rule 16, read with Form TV, of the Copyright Rules, 1958 as further strengthened through amendment in 1992 envisage a protection of infrastructure which is in substitution of publication of application and right to opposition provided under the Trade Marks law since ages. Courts have repeatedly held that in matter of disputes relating to labels, marks, etc., it is not that issues relating to the rights of the private persons are only involved. Public at large has a stake in these issues. For that reason, maintenance of the purity of register is emphasized time and again.
Copyright Act, 1957
Section 59
HELD that in case of use of the counterfeited and duplicate software Sum of Rs. 5 lacs awarded as
compensatory damages and a sum of Rs. 5 lacs as punitive/exemplary damages as well as
damages on account of loss of reputation and damage to the goodwill further the suit decreed.
HELD that in case of use of the counterfeited and duplicate software Sum of Rs. 5 lacs awarded as
compensatory damages and a sum of Rs. 5 lacs as punitive/exemplary damages as well as
damages on account of loss of reputation and damage to the goodwill further the suit decreed.
Tuesday, May 18, 2010
Copyright Act, 1957 Section 59
The defendants claimed to be in the
business, inter alia, of publishing guides or what is in this part of the country called
Kunji or Dukki. It was the case of the defendants that the textbook of the plaintiff
subject matter of the suit was prescribed by the Guru Nanak Dev University,
Amritsar for the students of BA Part I, II and III; that they were merely for the
facility of the students and for better understanding of the subject matter by the
students publishing the guides; that the introduction before each exercise in the two
publications were different; that the illustrations in the textbook of the plaintiff
were not existing in the publication of the defendants; that while the answers in the
plaintiffs publication were at the end of the book, the questions and answers were
together in the publication of the defendants; that while the plaintiffs publication
contains two choice of answers for most of the questions, the defendants publication
gave only one answer. It was thus the case of the defendants that the plaintiffs
publication being a course book of the university and the defendants being engaged
in publishing guides as aforesaid, had to naturally publish the answers as in the
plaintiffs book and could not have published different answers. The defendants have
gone to the extent of stating that they have also given credit to the plaintiff in their
publication. It was, however, contended that the format of the two books was
different. It was the case of the plaintiffs themselves that while the plaintiffs
publication was for Rs. 95 only, the defendants publications were for over Rs. 600/-.
HELD This is a striking point in the present case. Normally, the purpose of
infringers of trademark, copyright and patent is to sell and/or use counterfeit or
pirated goods at a price much lower than that of the owner of the trademark or
copyright. The infringers are able to sell at a much lower price, having not incurred
the expense which the owner has incurred in creation of work etc. However, in the
present case the plaintiff themselves claims that the book / publication of the
defendants is of a value several time more than that of the plaintiff.
business, inter alia, of publishing guides or what is in this part of the country called
Kunji or Dukki. It was the case of the defendants that the textbook of the plaintiff
subject matter of the suit was prescribed by the Guru Nanak Dev University,
Amritsar for the students of BA Part I, II and III; that they were merely for the
facility of the students and for better understanding of the subject matter by the
students publishing the guides; that the introduction before each exercise in the two
publications were different; that the illustrations in the textbook of the plaintiff
were not existing in the publication of the defendants; that while the answers in the
plaintiffs publication were at the end of the book, the questions and answers were
together in the publication of the defendants; that while the plaintiffs publication
contains two choice of answers for most of the questions, the defendants publication
gave only one answer. It was thus the case of the defendants that the plaintiffs
publication being a course book of the university and the defendants being engaged
in publishing guides as aforesaid, had to naturally publish the answers as in the
plaintiffs book and could not have published different answers. The defendants have
gone to the extent of stating that they have also given credit to the plaintiff in their
publication. It was, however, contended that the format of the two books was
different. It was the case of the plaintiffs themselves that while the plaintiffs
publication was for Rs. 95 only, the defendants publications were for over Rs. 600/-.
HELD This is a striking point in the present case. Normally, the purpose of
infringers of trademark, copyright and patent is to sell and/or use counterfeit or
pirated goods at a price much lower than that of the owner of the trademark or
copyright. The infringers are able to sell at a much lower price, having not incurred
the expense which the owner has incurred in creation of work etc. However, in the
present case the plaintiff themselves claims that the book / publication of the
defendants is of a value several time more than that of the plaintiff.
Copyright Act, 1957 Section 2(c)
Civil Procedure Code, 1908
Order 39 Rules 1 & 2
Infringement of the Plaintiffs' copyright in their drawings. Illustration of Copper plates shows not only similarity but identical dimensions . Plaintiffs' former employees are presently Defendants' employees . The case of theft coupled with recovery of the drawings show access to the Plaintiffs' drawings by the Defendants. Recovery of the stolen copies of the Plaintiffs' drawings shows not only similarity, but identical dimensions in the Defendants' sketches — Drawings show no appeal and only mechanical devices and machine parts to perform specified functions -Plaintiffs' drawings are, therefore, not design rather are artistic works — Its theft, copying, and subsequent use constitute infringement under Section 2(m) of the Plaintiffs' copyright under Section 14(c)(l) — Defendants restrained from using the drawings.
Order 39 Rules 1 & 2
Infringement of the Plaintiffs' copyright in their drawings. Illustration of Copper plates shows not only similarity but identical dimensions . Plaintiffs' former employees are presently Defendants' employees . The case of theft coupled with recovery of the drawings show access to the Plaintiffs' drawings by the Defendants. Recovery of the stolen copies of the Plaintiffs' drawings shows not only similarity, but identical dimensions in the Defendants' sketches — Drawings show no appeal and only mechanical devices and machine parts to perform specified functions -Plaintiffs' drawings are, therefore, not design rather are artistic works — Its theft, copying, and subsequent use constitute infringement under Section 2(m) of the Plaintiffs' copyright under Section 14(c)(l) — Defendants restrained from using the drawings.
Copyright Act, 1957 Section 50
Trademark LIFEBUOY of the plaintiff enjoying reputation. Respondent using a wrapper of same size, same colour, with same proportion of the segment of the colour red vis—vis white but for trade name LUCKY SOAP . Opposition before the Registrar of Trademarks . Registrar of Trademarks held that the wrapper of the respondent, if permitted to be registered, would cause confusion in the eyes of the consumer and hence is deceptively similar to that of the appellant . Copyright Board has arrived at a totally contradictory finding . Copyright Board gravely erred in not even discussing the order passed by the Registrar of Trademarks . HELD Impugned order, set aside.
Monday, May 17, 2010
Copyright Act, 1957
Section 2(c)
Designs Act, 1911 — Section 2(1)(5)
Designs Act, 2000 — Section 2 (d)
Dismissing Appeal.
Held Imitation or substantial reproduction of the plaintiff's fabric prints including the underlying drawings/sketches . Artistic work as defined in Section 2(c) of the Copyright Act, 1957 is excluded . No denial by the defendant of alleged infringement of copyright . This a flagrant case of violation of copyrights.
Further Held Registration of the work is not compulsory and is not a condition precedent for maintaining a suit for damages for infringement of copyright
There is no specific denial by the defendant in the written statement filed by him except in Para 3 where it is urged that the work in question is not covered under Section 2(c)(iii) of the Copyright Act and the said fabric are designs which are registered under the Designs Act, 1911 or under the new Designs Act of 2000. [Para 19]
Here again, it is pertinent to mention that the defendant has not made any specific denial of the said averment made by the plaintiff pertaining to the allegation of infringement of copyright mentioned. He has only made the following statement to the said paras :
"13-15. That the contents of paras 13 to 15 of the plaint are wrong and hence denied. It is denied that the designs as referred as T-l to TSare the original designs of the Plaintiff or that the said designs are registered under the Designs Act, 2000.
Plaintiff has dwelled extensively into comparison of two samples without estab¬lishment of his rights and without showing as to which right has been infringed." [Para 21]
From the above said averments, it is clear that there is hardly any denial made by the defendant of alleged infringement of copyright by him and it appears that it is a flagrant case of piracy of copyrights. The concept of copyright has been dealt by the Bombay High Court in the case of Burroughs Wellcome (India) Ltd. v. Uni-sole Pvt. Ltd. and Another; 1999 PTC (19) 188(Bom) in the following words:
"8. Copyright it is a form of intellectual property. With advancement in technology it is very easy to copy. The basic test in actions based on the infringement of the copyright is that if a thing fetches a price, it can always be copied and therefore, it needs adequate protection. It is well settled that although under the Copyright Act 1957, there is a provision of registration, under Section 44 of the Act. It is not in doubt that the said procedure is an enabling provision and registration is not compulsory for the purpose of enforcing copyright. Section 44 of the Act provides for registration of work in which copyright exists but in order to claim copyright registration is not necessary. This is because registration is only to raise a presumption that the person shown in the certificate of registration is the author. This presumption is not conclusive, but no further proof is necessary unless there is a proof rebutting the contents of the said certificate. Under Section 48 of the Registration Act therefore, the act of registration is ex-facie prima facie evidence of the particulars incorporated in the certificate. There is no provision under the Act which deprives the author of his rights on account of non-registration of the copyright. There is nothing in the Act to suggest that the registration is condition precedent to the subsistent of the copyright or acquisition of copyrights or ownership thereof or for reliefs of infringement of copyrights. The sine-qua-non of existence of a copyright is expenditure of skill, labour and capital on any work expanded by a person I author and unless the original work is produced in Court to prima facie show that the work has originated from author, no relief can be granted. In other words, copyright exists even without it being registered for the purposes of its enforcement. The nature of copyright is also meant a to be borne in mind. It subsists in any material form in which ideas are translated. Copyright is a incorporeal right. It does not lie in any idea, but it lies in the expression in which the idea is expressed. The work of an author therefore becomes the subject matter of the copyright. In essence the copyright is a negative right of preventing copying of physical material in the field of art, literature etc. Once an idea is written . down, the writing becomes the subject matter of copy right. With globalisation and advancement of technology, even computer programmes come within the copyright. Any work conveying a particular information comes within the subject matter of a copyright and it needs protection. Even a catalogue of items manufactured by a manufacturer can come within the subject matter of copyright. Even a decoration or an artistic work on a carton or a contained of goods can become the subject matter of copyright......." [Para 22]
We are, therefore, of the opinion that the plaintiffs' work is entitled for protection under Section 2(c) of the copyright Act and is an original artistic work. Since the work is an 'artistic work' which is not covered under Section 2(d) of the Designs Act,2000, it is not capable of being registered under the Designs Act and the provisions of Section 15(2) is not applicable. [Para 26]
Designs Act, 1911 — Section 2(1)(5)
Designs Act, 2000 — Section 2 (d)
Dismissing Appeal.
Held Imitation or substantial reproduction of the plaintiff's fabric prints including the underlying drawings/sketches . Artistic work as defined in Section 2(c) of the Copyright Act, 1957 is excluded . No denial by the defendant of alleged infringement of copyright . This a flagrant case of violation of copyrights.
Further Held Registration of the work is not compulsory and is not a condition precedent for maintaining a suit for damages for infringement of copyright
There is no specific denial by the defendant in the written statement filed by him except in Para 3 where it is urged that the work in question is not covered under Section 2(c)(iii) of the Copyright Act and the said fabric are designs which are registered under the Designs Act, 1911 or under the new Designs Act of 2000. [Para 19]
Here again, it is pertinent to mention that the defendant has not made any specific denial of the said averment made by the plaintiff pertaining to the allegation of infringement of copyright mentioned. He has only made the following statement to the said paras :
"13-15. That the contents of paras 13 to 15 of the plaint are wrong and hence denied. It is denied that the designs as referred as T-l to TSare the original designs of the Plaintiff or that the said designs are registered under the Designs Act, 2000.
Plaintiff has dwelled extensively into comparison of two samples without estab¬lishment of his rights and without showing as to which right has been infringed." [Para 21]
From the above said averments, it is clear that there is hardly any denial made by the defendant of alleged infringement of copyright by him and it appears that it is a flagrant case of piracy of copyrights. The concept of copyright has been dealt by the Bombay High Court in the case of Burroughs Wellcome (India) Ltd. v. Uni-sole Pvt. Ltd. and Another; 1999 PTC (19) 188(Bom) in the following words:
"8. Copyright it is a form of intellectual property. With advancement in technology it is very easy to copy. The basic test in actions based on the infringement of the copyright is that if a thing fetches a price, it can always be copied and therefore, it needs adequate protection. It is well settled that although under the Copyright Act 1957, there is a provision of registration, under Section 44 of the Act. It is not in doubt that the said procedure is an enabling provision and registration is not compulsory for the purpose of enforcing copyright. Section 44 of the Act provides for registration of work in which copyright exists but in order to claim copyright registration is not necessary. This is because registration is only to raise a presumption that the person shown in the certificate of registration is the author. This presumption is not conclusive, but no further proof is necessary unless there is a proof rebutting the contents of the said certificate. Under Section 48 of the Registration Act therefore, the act of registration is ex-facie prima facie evidence of the particulars incorporated in the certificate. There is no provision under the Act which deprives the author of his rights on account of non-registration of the copyright. There is nothing in the Act to suggest that the registration is condition precedent to the subsistent of the copyright or acquisition of copyrights or ownership thereof or for reliefs of infringement of copyrights. The sine-qua-non of existence of a copyright is expenditure of skill, labour and capital on any work expanded by a person I author and unless the original work is produced in Court to prima facie show that the work has originated from author, no relief can be granted. In other words, copyright exists even without it being registered for the purposes of its enforcement. The nature of copyright is also meant a to be borne in mind. It subsists in any material form in which ideas are translated. Copyright is a incorporeal right. It does not lie in any idea, but it lies in the expression in which the idea is expressed. The work of an author therefore becomes the subject matter of the copyright. In essence the copyright is a negative right of preventing copying of physical material in the field of art, literature etc. Once an idea is written . down, the writing becomes the subject matter of copy right. With globalisation and advancement of technology, even computer programmes come within the copyright. Any work conveying a particular information comes within the subject matter of a copyright and it needs protection. Even a catalogue of items manufactured by a manufacturer can come within the subject matter of copyright. Even a decoration or an artistic work on a carton or a contained of goods can become the subject matter of copyright......." [Para 22]
We are, therefore, of the opinion that the plaintiffs' work is entitled for protection under Section 2(c) of the copyright Act and is an original artistic work. Since the work is an 'artistic work' which is not covered under Section 2(d) of the Designs Act,2000, it is not capable of being registered under the Designs Act and the provisions of Section 15(2) is not applicable. [Para 26]
Copyright Act, 1957
Section 59—
Movie 'Sorry Bhai'—Allegation of piracy of song Jalte Hain — No similarity with the plaintiffs song Ballo HELD Interim injunction refused with direction to maintain full accounts of the movie 'Sorry Bhai', the sale of the audio and video cassettes and CDs and the revenue generated by the film.
Movie 'Sorry Bhai'—Allegation of piracy of song Jalte Hain — No similarity with the plaintiffs song Ballo HELD Interim injunction refused with direction to maintain full accounts of the movie 'Sorry Bhai', the sale of the audio and video cassettes and CDs and the revenue generated by the film.
Copyright Act, 1957
Section 62
Code of Civil Procedure, 1908 —
Section 20
Cause of action not arisen in Delhi . The cause of action arose in Maharashtra only, where the plaintiffs principal office is located . Suit is maintainable at Maharashtra.
We have already mentioned the landmark and oft-quoted judgment of the Supreme Court in Patel Roadways and Oil & Natural Gas Commission. We must also refer to a more comparatively recent decision in Kusum Ingots and Alloys Limited v. Union of India, (2004) 6 SCC 254 where it has been enunciated that if only a small part of the cause of action has arisen within the territorial jurisdiction of a particular High Court, it is not bound to entertain the petition. It would be sufficiently empowered to refer the petition to the court where substantially the cause of action has arisen as it would be more convenient to adjudicate the matter in that court. Although it was Section 20 of the CPC which was in focus in all those cases, it is the legal rationale behind it that had compelled the court to render a purposive interpretation thereto. This approach is exactly what is called for even where the Court is to interpret other statutes such as the Copyright Act and the Trade Marks Act. [Para 12]
In this analysis, we find the Appeal to be devoid of merits. So far as the facts of the present case are concerned, the cause of action, as laid out in the Plaint, has arisen in Maharashtra only, where the Plaintiff's principal office is located. Had it allegedly arisen at a place where the Plaintiff does not have its principal or subordinate office, the suit could have been filed in any Court holding territorial jurisdiction over any of its offices. Thus, it is evident that we are, in no wise, whittling down the provisions of either the Copyright Act or the Trade Marks Act. We hold that if the cause of action has arisen at a place where the Plaintiff actually and voluntarily resides or carries on business or personally works for gain, that place is not only the appropriate but also the only place where a suit can be instituted ventilating a grievance of violation of copyright, (and since the provisions are similar) to an infringement of the trade¬mark. In holding so we are not ignoring the provisions of either the Copyright Act or the Trade Marks Act; we are only imparting a pragmatic interpretation to them. [Para 13]
Code of Civil Procedure, 1908 —
Section 20
Cause of action not arisen in Delhi . The cause of action arose in Maharashtra only, where the plaintiffs principal office is located . Suit is maintainable at Maharashtra.
We have already mentioned the landmark and oft-quoted judgment of the Supreme Court in Patel Roadways and Oil & Natural Gas Commission. We must also refer to a more comparatively recent decision in Kusum Ingots and Alloys Limited v. Union of India, (2004) 6 SCC 254 where it has been enunciated that if only a small part of the cause of action has arisen within the territorial jurisdiction of a particular High Court, it is not bound to entertain the petition. It would be sufficiently empowered to refer the petition to the court where substantially the cause of action has arisen as it would be more convenient to adjudicate the matter in that court. Although it was Section 20 of the CPC which was in focus in all those cases, it is the legal rationale behind it that had compelled the court to render a purposive interpretation thereto. This approach is exactly what is called for even where the Court is to interpret other statutes such as the Copyright Act and the Trade Marks Act. [Para 12]
In this analysis, we find the Appeal to be devoid of merits. So far as the facts of the present case are concerned, the cause of action, as laid out in the Plaint, has arisen in Maharashtra only, where the Plaintiff's principal office is located. Had it allegedly arisen at a place where the Plaintiff does not have its principal or subordinate office, the suit could have been filed in any Court holding territorial jurisdiction over any of its offices. Thus, it is evident that we are, in no wise, whittling down the provisions of either the Copyright Act or the Trade Marks Act. We hold that if the cause of action has arisen at a place where the Plaintiff actually and voluntarily resides or carries on business or personally works for gain, that place is not only the appropriate but also the only place where a suit can be instituted ventilating a grievance of violation of copyright, (and since the provisions are similar) to an infringement of the trade¬mark. In holding so we are not ignoring the provisions of either the Copyright Act or the Trade Marks Act; we are only imparting a pragmatic interpretation to them. [Para 13]
Saturday, January 30, 2010
Companies Act, 1956
Copyright Act, 1957
Section 61
Contract Act
HELD The question which arises is that should this court come to the rescue of a plaintiff whose case is steeped in such illegality. The answer necessarily has to be in negative. The present is a case where the plaintiff as well as the defendant against whom the relief has been claimed are both not entitled to the property which is of a company in litigation. The witness of the plaintiff in his affidavit by way of examination in chief also supports the said view. From his affidavit, it is not borne out and is not believable that the plaintiff at the time of entering into the agreement was not aware of the illegality of the transaction. The plaintiff as a trade person is presumed to know of proceedings for winding up having been initiated against Magnasound and it is unbelievable that the plaintiff while acquiring the copyrights of Magnasound under the agreement dated 17th June, 2004 but through the defendant No.3 was not aware of the reason therefore.
Doctrine of pari delicto potiar est conditio
" the courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud, in detail."
Suit dismissed with exemplary costs copy forwarded to Official Liquidator.
Copyright Act, 1957
Section 61
Contract Act
HELD The question which arises is that should this court come to the rescue of a plaintiff whose case is steeped in such illegality. The answer necessarily has to be in negative. The present is a case where the plaintiff as well as the defendant against whom the relief has been claimed are both not entitled to the property which is of a company in litigation. The witness of the plaintiff in his affidavit by way of examination in chief also supports the said view. From his affidavit, it is not borne out and is not believable that the plaintiff at the time of entering into the agreement was not aware of the illegality of the transaction. The plaintiff as a trade person is presumed to know of proceedings for winding up having been initiated against Magnasound and it is unbelievable that the plaintiff while acquiring the copyrights of Magnasound under the agreement dated 17th June, 2004 but through the defendant No.3 was not aware of the reason therefore.
Doctrine of pari delicto potiar est conditio
" the courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud, in detail."
Suit dismissed with exemplary costs copy forwarded to Official Liquidator.
*****
Tuesday, January 26, 2010
Copyright Act, 1957
Section 52(l)(m) — Copyrights of scripts, books, publications re-publication of the works of E.V. Ramasami (Popularly called as Periyar)
HELD The author of Kudiyarasu, i.e. Late Periyar, was the owner and the articles published in the newspapers mostly related to the then existed economical, political, social and religious topics. Therefore, unless the author had expressly reserved his right of reproduction, no copyright will vest with anyone as reproduction of such articles cannot constitute an infringement of copyright as per Section 52(l)(m) .
Reproduction in a newspaper, magazine or other periodical . Unless the author had expressly reserved his right of reproduction, no copyright will vest with anyone as reproduction of such articles cannot constitute an infringement of copyright . Copyright in literary materials can only be an intellectual property and there has to be material to show that it was specially assigned—No written or other materials to show that a copyright reserved by author of those articles and that he also assigned it in favour of the plaintiff . Unless it is shown that they intend to reproduce pre-existing works, an order of injunction cannot be granted on the basis of apprehension and unsubstantiated allegations . Plaintiff failed to establish any ownership of the copy right in their favour and a corresponding infringement of copyright on the part of the respondents. Application for interim injunction, dismissed.
Section 52(l)(m) — Copyrights of scripts, books, publications re-publication of the works of E.V. Ramasami (Popularly called as Periyar)
HELD The author of Kudiyarasu, i.e. Late Periyar, was the owner and the articles published in the newspapers mostly related to the then existed economical, political, social and religious topics. Therefore, unless the author had expressly reserved his right of reproduction, no copyright will vest with anyone as reproduction of such articles cannot constitute an infringement of copyright as per Section 52(l)(m) .
Reproduction in a newspaper, magazine or other periodical . Unless the author had expressly reserved his right of reproduction, no copyright will vest with anyone as reproduction of such articles cannot constitute an infringement of copyright . Copyright in literary materials can only be an intellectual property and there has to be material to show that it was specially assigned—No written or other materials to show that a copyright reserved by author of those articles and that he also assigned it in favour of the plaintiff . Unless it is shown that they intend to reproduce pre-existing works, an order of injunction cannot be granted on the basis of apprehension and unsubstantiated allegations . Plaintiff failed to establish any ownership of the copy right in their favour and a corresponding infringement of copyright on the part of the respondents. Application for interim injunction, dismissed.
*****
Copyright Act, 1957
Section 63 — Plaintiff engaged in the business of manufacturing and marketing audio cassettes, video cassettes, compact disks, televisions, CD Players, fans, mineral water and various other products . Defendant illegally exploiting the sound recordings as well as the lyrics, musical compositions and music videos that are copyrights of the plaintiff . Defendants in continued breach of the plaintiffs copyrights and are seeking to unfairly gain an advantage over other Cable TV operators who have recognized the plaintiffs copyrights and have entered into valid public performance license agreements
HELD "I hereby restrain permanently all the other defendants, their officers, servants, agents and representatives and anyone acting for or on their behalf from engaging themselves or authorizing the public performance or communicating to the public or in any other way exploiting films, sound recordings and literary works (lyrics) and musical positions or other work or part thereof of the plaintiff."
*****
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