B. N. KIRPAL, J. (Oral)

( 1 ) THE question which has been referred to this Bench, by a Single Judge of this Court, tor decision is whether a single suit can be filed when it is alleged that there has been an infringement of the plaintiff s trade mark and copy right. In other words can one suit be filed in relation to two distinct statutory causes of action.

( 2 ). The plaintiff in the suit had alleged that the defendant had infringed the plaintiff s registered trade mark and also its copy right. The allegation was that the plaintiff s copy right existed on the labels and carton? in which goods had been packed which carried the trade mark of the plaintiff. With regard to the trade mark the allegation was that-the plaintiff was the registered proprietor of the mark "jay". It was also: alleged, with relation to the copy right, that the plaintiff had been using distinctive cartons in which the goods manufactured by the plaintiff namely, locks, meters, cut outs etc. were packed. It was further alleged in the plaint that the defendant was infringing the plaintiff s aforesaid registered trade mark and also the copy right which existed in the artistic work on the cartons of the plaintiff. Based on this allegation the suit was filed for injunction and damages.

( 3 ). Before issuing summons the learned single Judge passed an order dated 18th September, 1990 in which it was, inter alia, stated that the plaintiff had alleged that two distinct statutory rights had been violated, namely, the right granted by The Trade and Merchandise Marks Act and the other right granted by the Copy Right Act. After referring to Order II Rule 6, Civil Procedure Code the learned single Judge was of the opinion that where two distinct statutory causes of action existed which will require different kinds of proof then it would not be convenient to try them as a part of the same suit. Because the learned Single Judge did not agree with the observations of G. R. Luthra, J. in the case of Glaxo Operations U. K. . Ltd. Middlesex (England) v. Samrat Pharmaceuticals Kanpur, AIR 1984 Delhi 265, wherein a contrary view had been taken, he directed that this issue be referred to a larger Bench. It is as a consequence thereof that the reference has been heard by us.

( 4 ). Before dealing with the aforesaid issue it will be appropriate to observe that in the reference order the learned single Judge has observed that the document which is sued upon in case of original artistic work would be the original artistic work itself and a mechanically re-produced carton cannot be equated with the original artistic work. Shri Aggarwal contends that the copy right of the author or the artist would exist not only for the manuscript of the first work of the author or the artist but also in mechanical re-production thereof. While referring to Sections 13 and 14 of The Copy Right Act it has been submitted by the learned counsel that the exclusive right, in the case of an author, has been given to him not only in the manuscript but also in the mechanical re-production thereof, e. g. , an author who gets a book printed or published would continue to have and retain the copy right, unless it is assigned, in each and every volume of copy which is printed. When a person, who does not have a copy right, seeks to print any book then that would result in the infringement of Section 14 of the Copy Right Act and would give a right to the author to take suitable action. In other words the right of re-production is with the author and with no one else except in the case of a person authorised by him. Similar is the position with regard to an artistic work. The mechanical re-production of an artistic work would also, it has been submitted, be subject to the protection given by the Copy Right Act just as there is protection given to audio cassettes. In our opinion it is not necessary for us to go into the aforesaid contention because this is an issue which will arise on merits if an objection is taken

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