The main legal point established in the judgment is that the comparison of the artistic works is crucial in determining originality and infringement under the Copyright Act, and the rejection of a rectification application should be based on the originality of the works rather than factors relevant to a passing off action.

Prathiba M. Singh, J.

1. Before the Copyright Board, an application was preferred under Section 50 of the Copyright Act, 1957 by Hindustan Unilever Limited, the predecessor of Marico Ltd., Appellant herein, (hereinafter ‘Appellant’) against one M/s. J.K. Enterprises (proprietary concern of Mrs. Jagjit Kaur) (hereinafter, ‘Respondent’). The Appellant sought rectification of the impugned entry in the Register of Copyrights bearing no. A-64850/2003 dated 25th July, 2003, which is an artistic work for the label “NIHAL UTTAM”. The Appellant claims to be the successor-in-interest of Tata Oil Mill Company Ltd. (hereinafter, ‘TOMCO’) which had coined the brand name ‘TATA NIHAR’. In 1994, the brand was amended to ‘NIHAR’ and was used in respect of hair oil, coconut oil, cosmetics, perfumes, etc. The earliest trade mark registration of the word “NIHAR” dated back to 24th October, 1994 and has since been registered in India and in several other countries including Qatar, Kuwait, Malaysia, Bangladesh, Nepal, UAE, Saudi Arabia, Yemen, Mauritius and others.

2. It is the case of the Appellant that the trade mark NIHAR has been in use for several years in respect of coconut oil and the label that has been used, has the primary colour scheme of green, yellow and white with the representation of two coconut trees. Over the years though, the labels themselves have been amended, the fundamental get up and colour scheme continued to remain the same. The Appellant came across the Respondent's copyright registration bearing No A-64850/2003. The Appellant’s contention was that the Respondent registered the impugned copyright as an ‘artistic work’ under Section 2(c) of the Copyright Act, in the year 2003. The registration issued to the Respondent dated 25th July, 2003 claimed the first publication to be of 2002. Accordingly, a Rectification Petition came to be filed before the Copyright Board, seeking rectification/removal of the Respondent's registration from the Register of Copyrights. Before the Board, the Appellant was substituted as Petitioner in the petition after assignment of relevant rights from Hindustan Unilever Ltd. Accordingly, the Appellant herein would be deemed to include the present Appellant or its predecessor. The Rectification petition was dismissed on 21st September 2008 and the present appeal assails the said order. On the last date, counsel appearing for the Respondent had sought discharge after giving notice to the Respondents. Counsel was accordingly discharged and the matter was adjourned. None appears for the Respondent and is therefore proceeded exparte. Submissions on behalf of the Appellant have been heard.

3. A perusal of the Respondent’s impugned copyright registration and the Appellant’s labels show that there are several similarities between the same. The comparison of the works of the Appellant and the Respondent are set out below:

4. A perusal of the labels which are extracted above clearly shows that the Respondent’s artistic work “NIHAL UTTAM” is clearly not an original work but an imitation of the Appellant’s label. The Respondent's label is a substantial reproduction and a colourable imitation of the Appellant’s “NIHAR COCONUT OIL”. The Appellant is thus a person aggrieved and is entitled to maintain the petition under Section 50 of the Copyright Act 1957. The said provision reads as under:

“50. Rectification of Register by Appellate Board.- The Appellate Board on application of the registrar of Copyrights or of any person aggrieved, shall order the rectification of the Register of Copyrights by-

(a) the making of any wrongly omitted to the register, or

(b) the expunging of any entry wrongly made in, or remaining on, the register, or

(c) the correction of any error or defect in the r