1. With the consent of the parties , this appeal was finally heard at the stage of hearing of stay matter, and is being disposed of at this stage itself.

2. This appeal under Sec. 72(2) of the Copyright Act, 1957 , (hereinafter referred to as the Act) has been filed against the order dated 29-9-2000, passed by the Copyright Board (for short the Board) at Calcutta, allowing the petition filed by respondent No. 2 for rectification of the Copyright Register by expunging the entry relating to artistic work No. A-J 3875/97, issued in favour of appellant No. 1, Proprietor of Shri Om Perfumery, having its office and business in the town of Patna.

3. The appellants filed an appeal against the said order earlier before the High Court of Judicature at Calcutta. An objection was raised on behalf of respondents No. 1 and 2 that the appeal was not maintainable due to lack of territorial jurisdiction. The objection was upheld. Thereafter, the present appeal has been filed.

4. Appellant No. 1 is a firm and appellant No 2 is its Proprietor. the appellants claim that they are carrying on business of manufacturing, trading and marketing incense sticks (Agarabatti) and related goods for the last 20 years and they are selling their incense sticks under "Ramayan" label brand. They claim that it is their artistic creation under the label of "Ramayan" and is unique in its style of writing design setting, colour scheme and other allied features and these have been prepared at their instance by a designer and photographer of Shiva Kashi and on that basis of the final artistic work was given the label of Ramayan Agarbatti. They are using the said label of Ramayan since 1981 and their product became very popular. Respondent No. 2, Amrit Pal Singh, was earlier selling the appellants products in the market up to 1995, but later on taking benefit of the goodwill of the product of the appellant and also that the product of the appellants is popular, he started manufacturing the incense sticks (Agarbatti) under the same label of Ramayan. Respondent No. 2 illegally adopted the label/its original design, get up, structures, letters etc. and started manufacturing, trading and marketing, its products of incense sticks using the artistic work under Ramayan label. In other words, the original label and trade mark of the appellants, which they have been using since 1981, are being dishonestly used by respondent No. 1, which is a violation of the products as well as the trade mark of the appellants. The appellants applied on 25-8-1994 before the Registrar, Trade Marks, for registration of the "Ramayan" label under the provision of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as Merchandise Marks Act). In the said application, they had given the date of user of the trade mark from 1-1-1987. Later on they filed an application on 6-8-1996 for correction of the said date on the ground that there was a typographical error and the actual date of user is 1-1-1981. The said application is still pending. Prior to that on 19-6-1996, the appellants sent a notice to respondent No. 2 alleging that he is using the same trade mark "Ramayan" on the Agarbatti, which is used by the appellants and by imitating their registered trade mark "Ramayan" and reproducing the distinctive artistic features, the registered trade mark of Ramayan of the appellants is being infringed by the respondents. Thereafter, they filed an application before the Registrar of the Copyright under the Act for registration of the copyright under Sec. 45 of the Act. The appellants on 8-8-1996 had already applied, before the Registrar, Trade Marks, for grant of no objection certificate that no trade mark identical with or deceptively similar to the artiistic work of the appellants has been registered under the Merchandise Marks Act in favour of any other person nor any application under the Act for such registration has been made by any other person. On 20-9-1996, the appellants were g