IMPORTANT POINT
The main legal point established is that the suit can be rejected under Order VII Rule 11 (d) of CPC if it appears to be barred by any law, as per the provisions of the Copyright Act, 1957.

JUDGMENT :

Sunita Agarwal, J.

The instant First Appeal has been filed under Section 96 read with Order XLI of the Code of Civil Procedure, 1908, and under section 13 of the Commercial Courts Act, 2015, challenging the order of dismissal dated 01.04.2022 of the Commercial Trademark Suit No. 3 of 2019 on the ground that the suit is barred by law and the plaint is liable to be rejected under Order VII Rule 11 (d) of the CPC. The conclusion drawn by the Commercial Court is that the suit of the plaintiff is hit by the statutory bar under Section 15(2) of the Copyright Act, 1957.

2. Having exhaustively gone through the judgment and order impugned of the Commercial Court, we find that the court has dealt with two applications together namely the applications under Order VII Rule 11 of the CPC and under Order XXXIX Rule (1) and (2), CPC namely Exh. 48 and Exh.5; respectively, on the premise that in the previous order dated 26.9.2019 passed by the predecessor Judge, it was decided to proceed with the hearing of both the applications together. Resultantly, the learned Judge by the common order under challenge, while allowing the application under Order VII Rule 11, CPC and rejecting the application for interim injunction under Order XXXIX Rule 1, has begun to record the case of the plaintiff and the reliefs prayed by him and further the averments in the application under Order VII Rule 11, CPC in the judgment. Noticing that both the applications were to be heard conjointly, it has further proceeded to record the defense of the defendant Nos. 1 to 3 and noted the arguments of the learned advocates for the defendants as to why the suit be rejected. Some of the arguments of the defendants noted by the learned Judge are that :-

“6.2 Arguments by the Advocate of Defendant no.1 -

- The suit filed by the plaintiff is not tenable in the eyes of law and is to be rejected.

- Plaintiff has not specified the proprietary nature of the property and the knowledge, technology and information of the commercial vehicle is 'publici juris'. Thus, the claim of protection under copyright does not subsist.

- The infringement alleged by the plaintiff is scientifically and readily available in the literature, books pertaining to the subject.

- Design codes in both the drawings are mentioned by the plaintiff as well as defendant no.1. Hence, the said IP design does not fall within the purview of the artistic work covered under section 2(c) of the Copy Right Act.

- Defendant no. 1 has independently created his drawings by investing huge sum of money on experts.

- On comparison of both the drawings i.e. the one claimed by the plaintiff and the other created by the defendants are not similar. Even the experts have opined that the drawings are different. Expert opinion is produced on record.

- Defendant no.1 has also registered his drawings and obtained certification from PESO. Hence, plaintiff has no prima facie case for granting of interim relief.

- The authorities cited by the plaintiff are not relevant to the facts of the present case.

6.3 Arguments by the Ld. Advocate of Defendant no.2-

- Defendant No.2 is not using the drawings/manufacturing the commercial vehicle like semi-trailer truck as alleged by the plaintiff. Allegations against the defendant No.2 are therefore baseless and without any substance. Hence, the suit should be rejected.

- Defendant No.2 holds expertise in supply of gas to the consumers. Defendant no.2 is nowhere connected with the disputed issue in the suit. Hence, there is no cause of action against defendant No.2.

6.4 Arguments of Defendant no. 3 & 4 :

Defendant No. 3 & 4 submitted written submissions vide Ex.88. They have submitted that the plaintiff has filed false suit against them. Originally, plaintiff had not filed suit against defendant number 3 & 4 and eventually after filing of the suit, they have been joined as co-defendants to this suit. No reliefs have been claimed against defendant Nos. 3 & 4. Hence, the suit is liable to be rejected.”

3. The a