IMPORTANT POINT
Section 62(2) of Copyright Act prescribes an additional ground for attracting jurisdiction of a Court over and above the "normal" grounds as laid down in Section 20 CPC.

Headnote:(i) Copyright Act, 1957-Section 62(2)-Appellant manufacturing medicine fee treatment of malaria under trademark "Maloxine" in packing having a distinctive get up, lay out and design-Civil suit to restrain respondents from passing off the trademark "Maloxine" or adopting distinctive get up of "Maloxine" carton-Interim stay granted by Delhi High Court-Respondent had not raised issue regarding lack of territorial jurisdiction-Division Bench in appeal directed plaint to be returned for presentation before appropriate Court on ground that Delhi High Court had no territorial jurisdiction to entertain suit-Appeal-Issue relating to territorial jurisdiction was not even raised in memo of appeal-In rejecting plaint on ground of jurisdiction Division Bench should have taken allegations contained in plaint to be correct-Division Bench erred in going beyond statement contained in plaint. (Paras 8 to 10)
       (ii) Copyright Act, 1957-Section 62(2)-Territorial jurisdiction of Court in a suit under-Jurisdiction for purposes of Section 62 is wider than that of Court as prescribed under CPC-Plaint pleaded that cease and desist notice from respondent was received at appellant s office in Delhi-Fact was sufficient to invoke jurisdiction of Court at Delhi.
       Held : It is, therefore, clear that the object and reason for the introduction of sub-section (2) of Section 62 was not to restrict the owners of the copyright to exercise their rights but to remove any impediment from their doing so. Section 62(2) cannot be read as limiting the jurisdiction of the District Court only to cases where the person instituting the suit or other proceeding, or where there are more than one such persons, any of them actually and voluntarily resides or carries on business or presently works for gain. It prescribes an additional ground for attracting the jurisdiction of a Court over and above the normal grounds as laid down in Section 20 of the Code. (Para 13)
       Furthermore, the appellants plaint said that the cease and desist notice was sent to the appellant No. 2 at its office in New Delhi and in that notice it was alleged that the appellant No. 2 had infringed the copyright of the respondent No. 2 to the trademark Maloxine . Now a cease and desist notice means that the recipient is alleged to have infringed the rights of the sender of the notice to the copyright and as a result of such alleged infringement the recipient is liable to institution of civil and/or criminal proceedings. It is a threat. The plaint says that this threat was received within the jurisdiction of the High Court a fact which was sufficient to invoke the jurisdiction of that Court. (Para 15)

JUDGMENT

Ruma Pal, J.-Leave granted.

2. The issue in these appeals is whether the High Court of Delhi has the jurisdiction under Section 62(2) of the Copyright Act, 1957 to entertain a suit filed by the appellants and one other.

3. The suit was filed by the appellants and M/s. Shreechem Laboratories against the two respondents, the first of whom is the Director of the respondent No. 2. According to the plaint, the appellant No. 1 manufactures a medicine for the treatment of malaria. The medicine is sold under the trademark Maloxine in packaging having a distinctive get up, lay-out and design. The appellant No. 1 has claimed to be the owner of the copyright in the trademark Maloxine . The plaint also contains a description of the distinctive carton in which the medicine is sold. According to the appellants, the appellant No. 1 had entered into a contract with appellant No. 2 by which the appellant No. 2 was authorised to manufacture tablets under the appellants trade mark for sale in the rest of the world apart from Nigeria. As far as Nigeria is concerned, the appellant No. 1 had entered into a contract with M/s Shreechem Laboratories for manufacturing Maloxine . These agreements have been described as agency/manufacturing agreements. It is also averred in the plaint that the appellant No. 1 had entered into an earlier agreement with the second respondent but that agreement was terminated for reasons which are unnecessary to be considered by us in these proceedings. What is of importance is that respondent No. 2 wrote two letters to the second appellant and to Shreechem Laboratories dated 5th November 1993 and 19th May 1998, by which the respondents called upon the appellant No. 2 and Shreechem to cease and desist from manufacturing pharmaceutical preparations under the trademark "Maloxine".

4. In the meanwhile, in 1996, the first appellant had instituted a civil suit against one M/s Moore Associates Limited before the Federal High Court of Nigeria in which it was claimed that M/s. Moore Associates Ltd. and the second respondent were wrongly passing-off its products under the first appellant s trade mark Maloxine . That suit is still pending.

5. In the present suit, the appellants have claimed that the respondent No. 2, despite termination of the manufacturing arrangement with the first appellant, had continued to manufacture Maloxine tables and was exporting the same, inter alia, to M/s Moore Associates Ltd. It was also claimed that the respondents were considering launching the product Maloxine in the Indian market. In the circumstances, the prayers in the suit were, inter alia, for an injunction to restrain the respondents from passing-off the trademark Maloxine or adopting the distinctive get up of the Maloxine carton; restraining the infringement of the copyright of the first appellant in the artistic work comprised in the Maloxine carton; for delivery up of the infringing goods and for accounts on account of the use of the impugned mark. The jurisdiction of the Delhi High Court was sought to be attracted on the bases : (a) the copyright of the plaintiffs (appellants) in the Maloxine carton was being infringed by the respondents; (b) the plaintiffs (appellants) carry on business in Delhi and one of them has a registered office in New Delhi. It was also stated that the defendants carry on business for profit in New Delhi within the jurisdiction of the High Court.

6. On the interlocutory application filed by the appellants in the suit, an ex-parte interim order was passed in favour of the appellants on 26th October 1998 by a learned Single Judge of the Delhi High Court. The interim order was confirmed on 28th September 1999. It does not appear from the judgment that the respondents had at all raised the issue regarding lack of territorial jurisdiction before the Single Judge. Although a prima facie view has been expressed that there was no doubt about the territorial jurisdiction of the Court but this was not wit

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2004 Supreme(SC) 222

IMPORTANT POINTSection 62(2) of Copyright Act prescribes an additional ground for attracting jurisdiction of a Court over and above the "normal" grounds as laid down in Section 20 CPC.

Cases Referred (1)

IMPORTANT POINT
Section 62(2) of Copyright Act prescribes an additional ground for attracting jurisdiction of a Court over and above the "normal" grounds as laid down in Section 20 CPC.