ARORA ASSOCIATES Vs. SURINDER PRAKASH GUPTA

JUDGEMENT

(1.) THIS is an appeal filed under section 72 of the Copyright Act, 1957 against the order of the Registrar of Copyright dated 23.12.2005. Briefly stating the facts of the case leading to this appeal are that the respondent number 1 filed a set of six applications bearing Title Nos. SAS -748 to SAS -753 all dated 17th February, 2005 in the category of artistic work. In the prescribed From IV for application for registration of copyright the responded mentioned the author of the works as the only other party as per the requirement of rule 16 of the Copyright Rules, 1958. The appellant filed its objections to the proposed registration on 21.4.2005. The Registrar heard both the appellant and the respondent and identified the following issues emanating from the application for registration: -

(2.) THE relevant grounds taken in the appeal are that a police party accompanied with the respondent No. 1 conducted a raid on 3.3.2005 at the premises of the appellant and seized certain goods which were articles, according to the appellant, legally imported by the appellant from China and arrested Shri Janak Raj Arora, a partner of the form.

(3.) THE appellant claims that a deed of undertaking under duress and having been in police custody was executed by the said partner, Shri Janak Raj Arora with to respondent No. 1 undertaking not to deal in the goods being towels etc. which may be infringement of alleged copyright of respondent No. 1 under the title SAS -501 to office SAS -753. Later the appellant came to know from the records of he Copyright Office that the respondent No. 1 has been granted registration in relation to another 32 works bearing different Title Nos. It has filed a cancellation Petition in the Copyright Board for the expunction of these registrations. Later on, it came to know about certain pending applications of the respondent No. 1 with the Registrar of Copyright which included title Nos. SAS -501 to SAS -753. In 32 registrations for which the Registrar has granted registration and against which the cancellation petition is pending with the Copyright Board, the Registrar has put a condition that applicable; the impugned applications were filed on 17th February, 2005 and the infringing activities of the appellant came to notice of the respondent No. 1 on 3rd March, 2005 and thus the appellant did not have any right to be informed; it is denied that the Registrar erred in holding that the appellant was to establish that the respondent No. 1 was using the impugned artistic works as trade marks in relation to goods; the question of the applicability of proviso to section 45(1) of the Copyright Act does not arise since the Registrar of Trade Marks does not issue a certificate for use under that proviso until the applicant claims his works to be a trade mark; the Registrar has not erred in holding that though the character or caricature of Mickey Mouse would be immediately recognized as one of the characters of Walt Disney but the same might not be a trade mark and to presume otherwise would be fatal as till the time the company expressly declares its intention to use the character or caricature as a trade mark, no presumptions of such caricatures being used or capable of being used as trade marks of the company be made; the Registrar has not erred in holding that the printing of cartoon characters on any product definitely does not mean that the character is being used in relation to goods; the Registrar has not erred in holding that the questioned artistic works were not designs within the meaning of section 2(d) of the Design Act; and it is denied that the impugned works are well known cartoon characters which can be seen by anyone on TV or particularly on cartoon channels.