JUDGMENT

Mukul Mudgal, J. This appeal bearing RFA (OS) No.25/2006 arises out of the judgment of the learned Single Judge dated 13th January, 2006 in Suit No. 1480/2002.

2. Since certain common issues arise in this appeal and the other two appeals i.e. FAO (OS) No. 326/2007 filed by Dart Industries Inc. and FAO (OS) No. 447/2008 filed by Mattel Inc., on the question of interpretation of Section 2(c) of the Copyright Act read with Section 2(d) of the Designs Act and Section 15(2) of the Copyright Act and their interplay with each other, we have permitted the parties in the connected appeals also to make submissions on the common legal principles arising in these appeals. However, the aforesaid two appeals bearing FAO(OS) Nos. 326/2007 and 447/2008 will be taken up for hearing on facts and other pleas after the pronouncement of the judgment in the present appeal bearing RFA(OS) No. 25/2006 in the appeal titled Microfibres v. Girdhar & Co. and Anr.

3. The appellant manufactures and sells upholstery fabrics with designs derived from the original and unique artistic works either conceptualized or drawn by its employees or by assignation of the copyright in such artistic works to the appellant by the original artists.

4. The respondents are also manufacturers of upholstery fabrics and the learned Single Judge in the judgment challenged in this court has held that the upholstery fabrics of the respondent do incorporate/reflect the designs founded upon the appellant's artistic works or a substantial reproduction thereof.

5. The grievance of the appellant arises from the premise that the learned Single Judge held that the designs in question were capable of being registered under the Designs Act, 2000 and consequently the appellant was not entitled to seek protection under the copyright law as the designs had not been registered under the Design's Act.

6. The learned Single Judge held as follows:

a. In order for the work of the appellant to qualify as an artistic work, it must fall within the sub-section (c) of the Section 2 of the Copyright Act. A reading of the said provision shows that the attempt of the appellant can only be to bring it to the concept of 'painting'.

b. The comparison with the painting of M.F. Hussain, would be otiose, as the work in question in the present case, is not a piece of art by itself in the form of painting.

c. The originality is being claimed on the basis of the arrangement made. What cannot be lost sight of is the very object with which such arrangements or works had been made. The object is to put the artistic work into industrial use.

d. The two important aspects are the object with which it is made, which is industrial and its inability to stand by itself as a piece of art. In fact, it has no independent existence in itself.

e. In India, there are special legislations governing the protection of different nature of rights. In so far as the industrial designs are concerned, the protection is provided under the Designs Act, 2000.

f. Fabric designs on textile goods have been classified as proper subject matter of design protection by inclusion as a specific class in the rules framed under the Designs Act. Such protection is provided under clause 05 of the New Design Rules, 2001.

g. The exclusion of an 'artistic work' as defined in Section 2(c) of the Copyright Act from the definition of 'design' under Section 2(d) of the Designs Act, 2000 is only meant to exclude the original artistic works like paintings of M.F. Hussain. It is, thus, the original paintings, sculptors and such works of art which are sought to be specifically excluded from the definition of Design under the Designs Act, 2000.

h. It is, thus, apparent that in the context of the Indian Law, it is the Design Act of 1911 or 2000, which would give protection to the appellant and not the Copyright Act.

i. The application of mind and skill is not being denied nor the fact that the respondents have copied the same, but that would still