Registration of copyright and trademark is a fundamental requirement for establishing infringement claims under the Copyright Act, 1957, and the Trade and Merchandise Marks Act, 1958, respectively.

G. B. PATTANAIK, J.

( 1 ) THE petitioner has invoked the inherent jurisdiction of this Court to quash the cognisance taken by the learned Chief Judicial Magistrate, Phulbani in I. C. C. No. 48 of 84 against the petitioner for the offence under S. 63 of the Copyright Act, 1957 and under Ss. 78 and 79 of the Trade and Merchandise Marks Act, 1958. The opposite party filed a complaint alleging that the petitioner is trading in 'khara Masala' using similar wrapper as that of the complainant and thereby has committed the offence for which cognisance has been taken. On receipt of the said complaint and on examining the complainant, the learned Magistrate came to the conclusion that a prima facie case under S. 63 of the Copyright Act and under Ss. 78 and 79 of the Trade and Merchandise Marks Act has been established and, therefore, took cognisance summoning the accused to appear before him by 17th July, 1984.

( 2 ) MR. Das, the learned counsel for the petitioner submits that the averments made in the complaint petition as well as the initial statement of the complainant taken in entirety do not make out the offence for which the cognisance has been taken and, therefore, this Court should quash the cognisance in exercise of the inherent jurisdiction. Mr. Patra, the learned counsel for the opposite party on the other hand submits that the allegations do not make out an offence and it would be a matter of evidence and, therefore, the proceedings should not be quashed at this stage.

( 3 ) I would first examine the contention regarding the Copyright Act. Under S. 63 of the said Act, infringement or abetting the infringement of the copyright in a work or any other right conferred by the said Act is punishable. S. 51 of the said Act reads : -"when copyright infringed - Copyright in a work shall be deemed to be infringed - (a) when any person, without a licence granted by the owner of the Copyright or the Registrar of Copyright under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act - (i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or (ii) permits for profit any place to be used for the performance of the work in public where such performance constitutes an infringement of the copyright in the work unless he was not aware and had no reasonable ground for believing that such performance would be an infringement of copyright, or (b) when any person - (i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or (ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or (iii) by way of trade exhibits in public, or (iv) imports into India, any infringing copies of the work. Explanation - For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an "infringing copy" : provided nothing in sub-clause (iv) shall apply to the import of two copies of any work, other than a cinematograph film or record, for the private and domestic use of the importer. "chapter X of the Act deals with registration of Copyright. S. 44 contained in the said Chapter provides for keeping of a register in the prescribed form at the Copyright office to be called as the Register of Copyright. S. 45 deals with the entries to be made in that register when necessary application in the prescribed form along with the prescribed fee is made to the Registrar of Copyrights. S. 47 is the provision which makes the Register of Copyrights and indexes thereof open for inspection. S. 48 is the provision which says that the register of Copyrights is the prima facie evidence of the particulars entered therein. One would, therefore, to have the copyright in any work must make out an application and get the same registered with