1997 Supreme(Bom) 302

IN THE HIGH COURT OF BOMBAY
S.H. Kapadia, J.
Burroughs Wellcome (India) Ltd. ..... Plaintiff.
Versus
Uni-Sole Pvt. Ltd. another .... Defendants.
Notice of Motion No. 1219 of 1994 in Suit No. 682 of 1994, decided on 3/4-7-1997.
Advocates appeared :
Veerendra Tulzapurkar, Ravi Kadam, Venkatesh, Dhound, M. Panchal, i/by M/s. Little Co., for the plaintiff.
Anand Kumar, for the defendants.

Headnote:Sections 44 and 48- Trade Marks-Infringement of-Marks simptran" used against mark septran" -Change in artistic work in carton Claim of subsisting right on the basis of registration of original artistic work-Held-Registration is not compulsory for enforcing copyright-Registration only raises presumption which is conclusive--No further proof is necessary.-It is the case of the plaintiffs that they are the owners of the copyrights in the original artistic work namely the carton a specimen of which is annexed to the plaint and the photograph of which is also at Exh. H. According to the plaintiffs the registration of the said copyright is valid and subsisting till today. According to the plaintiffs, the defendants have copied the original artistic work. The scheme, layout and get up is copied by defendant No.1 only with a slight alternations namely with logo appearing on the main panel of the two companies which differ. Otherwise the first defendants carton is substantial reproduce and/or colourable imitation of the plaintiffs original artistic work. They have also adopted, according to the plaintiffs the marks simptran which is deceptively similar to the plaintiffs registered trade mark septran and also deceptively similar to the associated trade marks referred to above. According to the plaintiff defendant No. 1 was wrongfully and with malicious and fraudulent intent adopted the mark simptran which is deceptively similar to the plaintiffs trade mark septran and by using the impugned mark defendant No. 1 has passed off and/or enabled others to pass of their goods as and for the goods of the plaintiffs. According to the plaintiffs adoption of the carton and the mark by defendant No.1 is allegedly distinct and fraudulent and the intention of the defendant No. 1 was and is to trade upon the reputation acquired by the plaintiffs and to pass off their goods as and for the goods of the plaintiffs. In the circumstances as stated hereinabove, the plaintiffs have sought reliefs by way of infringement of trade mark and passing off being closely connected with the reliefs on the basis of copyrights. The plaintiffs also obtained leave under clause 14 of the letters patent to permit them to combine the cause of action of infringement of trade mark and passing of with the cause of action for infringement of copyrights.

       By way of defence to the Notice of Motion, a reply has been filed by defendant No.1. It is the case of defendant No.1 that since 1990-91, the plaintiffs have changed and altered the registered carton and therefore, they cannot claim to have any subsisting rights in the artistic work of the carton. It is the case of the defendant No.1 that when after 1990-91 the plaintiffs replaced the name cotrimozazole in place of the compound Trimethoprim and Sulphametnozazole, it amounted to a complete change in the artistic work in the carton and since the alternations was not registered the plaintiffs cannot claim any subsisting right on the footing of the registration of the original artistic sock on the carton which consisted of the name septran carton preceded by the name of the compounds Trimethoprim and Sulphamethozazole. It is next contended in the affidavit that the plaintiffs admittedly have registered associated marks with the prefix sep and therefore they do not have any distinctive right in the suffix tran and if the plaintiffs are not using the said marks with suffice tran then the plaintiffs cannot claim any proprietary interest in the suffix tran and they cannot claim any right in the said suffix. They have further contended by the said affidavit in reply that simptran tablets are sold in strips packing/blister packing which are packed and sold in the carton of specimen of which is annexed as Exh. B to the affidavit in reply and in the above circumstances, there is no question of deceptive similarly between the two products. Because, according to the defendant No.1, the entire edifice of the plaintiffs cause of action is based on the infringement of the copyrights and subject matter of which is the carton or the artistic work on the carton whereas they have been selling the product simptran in tablets strips and not in carton, and therefore, there is no question of Ilrfringement of copyrights.

       Copyright 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 Copy Right 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 subsistence 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 expended by a person/author and unless the original work is produced in Court to prima facie show that the work has originated from author, nor relief can be granted in other words, copyright exists even without it being registered for the purposeso of its enforcement . The nature of copyright is also meant 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 copyright. 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 copyright and it needs protection. Even a catalogue of items manufactured by a manufacturer can come within the subject matter of copyright. Even a declaration or an artistic work on a carton or a container of goods can become the subject matter of copyright. This discussion is made because of two points which have been vehemently urged by the learned counsel for the defendants, namely that in the present case there is no artistic work involved which would attract the provisions of the Copy Right Act and secondly, it has been argued on behalf of defendant No.1, vehemently that since 1990-91, the label on carton has undergone substantial change in artistic work on the original registered copy right and therefore there was no subsisting right in the artistic work of the carton which is shown by way of photograph at Exh. H. Within the above introductory remarks, the contentions of the parties are required to be seen.