The central legal point established in the judgment is that the complaint disclosing an offence under the Trademark Act, which is cognizable, prevents the quashing of proceedings under Section 63 of the Copyright Act.

JUDGMENT :

BIBHAS RANJAN DE, J.

1. Quashing the proceeding of G.R. Case No. 484 of 2012 under Section 63 of the Copyright Act, 1957 pending in the Court of Ld. Chief Judicial Magistrate, Hooghly, is sought for in this application.

Background:

2. The F.I.R. was lodged on 26.03.2012 by the opposite party no. 2, Ranjeet Sah, Manager Operation, EIPR (I) Ltd. It is alleged that during market survey petitioner was found processing and selling counterfeit Diageo products viz. Johnnie Walker whiskey from his F.L. On Shop at Barrack Road, Chinsurah, Hooghly, without permission and thereby infringed the trademark and trade description of the original brand name of Diageo product.

3. After receiving the aforesaid complaint at Chinsurah Police Station the same was registered as Chinsurah P.S. Case No. 157/12 dated 26.03.2012 under Section 63 of the Copyright Act, 1957. Investigation was conducted and charge sheet was also filed under Section 63 of the Copyright Act.

Argument pressed on:

4. Ld. Counsel on behalf of the petitioner, Mr. Dhrubajoyti Ghosh, has contended that the contents of the complaint do not move closer to definition of “Copyright” depicted in Section 2 (y) of the Copyright Act. Therefore, according to Mr. Ghosh, the proceedings involved in this case is liable to be quashed.

5. Opposing the argument adduced on behalf of the petitioner, Mr. Anand Keshari, Ld. Counsel on behalf of the State, has tried to nose around a new interpretation of Section 2 (y) of the Copyright Act and submitted that the contents of the complaint attracts “artistic work” of Section 2(y) of the Copyright Act.

Analysis:

6. I am dealing with a complaint addressed to Officer-in-Charge of Chinsurah Police Station involving allegation of Processing and Selling counterfeit Diageo products viz. Johnnie Walker whiskey from the F.L. On Shop owned by the accused/petitioner herein, without obtaining permission from appropriate authority. It is also alleged that the complainant used trademark & trade description of original brand of Diageo Product.

7. After receiving complaint, police registered the case for the offence Under Section 63 of the Copyright Act, for the reason best known to the recording officer attached to Chinsurah Police Station in spite of specific infringement of trademark.

8. Mr. Ghosh has tried to create a dent in the prosecution case by referring to the Provision of Copyright Act which is totally unmatched with the allegation made in the complaint addressed to the Police.

9. Mr. Keshari also advanced esoteric issue by interpreting the word “artistic” in Section 2(y) of the Copyright Act. Mr. Keshari has tried to make an impression on this Court that allegation made in the complaint falls within the meaning of phrase “artistic work” in Section 2(y) of the Copyright Act.

10. Without searching a needle in a haystack, I propose to highlight the meaning of “Trademark” and “Copyright” i.e. two types of intellectual property rights, defined in the respective Acts.

11. Trademarks are registered to protect brand names, slogans, business names etc. and thereby trademark intends to protect the public from getting confused with similar products in market. A trademark secures brand authenticity and helps to protect oneness of the brand in the market.

12. Whereas, Copyright is a right afforded to the creators of musical, literary, artistic and dramatic works and the producers of sound recording and cinematograph films. In other words, Copyright protects the creativity of individuals or original work of individuals and nobody is allowed to imitate without permission.

13. Aforesaid discussions in terms of definition of “Trademark” and “Copyright” boils down to the position that a trademark protects a brand, name, logo, slogan used to sell products and services. Whereas a Copyright protects original creative expressions such as artistic, literary and dramatic works.

14. It is trite law that to exercise the extra-ordinary power under Article 226 of the Indian Constitution or t