VAIDYA NANDRAM GIGRAJ CHAMARIA Vs. RAJ KUMAR SARAF

JUDGEMENT

(1.) THIS is an application under section 50 of the Copyrights Act, 1957 for rectification of the Register of Copyrights for expunction of an entry in the said register. According to the petitioner, he is in the business of manufacturing and marketing of Pansarat and Ayurvedic medicines under the name and style of M/s. Vaidya Nandram Gigraj Chamaria since 1958 in the territory of India and since 1979 in the territory of Delhi. He has earned tremendous goodwill in the market in relation to manufacturing and marketing of Pansarat and Ayurvedic medicines including "Vijay Hingoli". He is holding various registered trade marks and an application for the registration "Vijay Hingoli" is pending consideration before the Trade Marks Registry. He launched the product titled Vijay Hingoli in 1981 in the territory of Delhi. The product was being marketed in bottles and plastic packs since 1981 and he started marketing the said product in pouches in 1991. Petitioner has also given his sale figures of the said product since 1994 -95. He submits that the respondent is fully aware of the existence of the petitioner in the market since they are distant relations and hail from the same village in Rajasthan. Respondent surreptitiously and with malafide intention made an application before the Registrar of Copyrights on 28.7.03 to register the aforementioned artistic work and get up in his name by making some cosmetic changes therein in relation to the same product "Vijay a Hingoli". Respondent has falsely claimed the user of the impugned artistic work since 1995. Registrar issued the registration certificate number A -66496/2004 on 26.2.2004. Petitioner came to know about the fact through an advertisement given by the petitioner in a local newspaper on 24.11.2004. Respondent has got the registration done by misleading the Registrar of Copyrights. Petitioner in evidence has submitted as P -1 and P -2 (57 pages) in support of his claim for necessary Ayurvedic and Sale Tax licensing and registrations. P -3 is a copy of the label of his mark. It does not bear any date of its creation or issuing. P -4 are the copies of the vouchers and bills for advertisement expenditures. At serial numbers 71 -73 of the annexures are the acknowledgements dated 27.3.1996 issued by the Registrar of Trade Marks office in favour of Ram Awatar Chamaria trading as Vaidya Nandram Gigraj Chamaria, Tilak Bazar, Delhi. Further, it is not evident from the petitions and the supporting evidence as to whether these applications were published in the Trade Marks Journal. At P -5 is the copy of the artistic work of the respondent. At P -6 is a copy of the search report of the Sales Tax authorities dated 18.10.2002 relating to the respondent. P -7 is the copy of the registration certificate issued by the Registrar of Copyright in favour of the respondent. P -8 is the copy of the newspaper advertisement inserted by the respondent.

(2.) ACCORDING to the submissions of the respondent, it is a proprietary concern of Shri Raj Kumar Saraf. Respondent in his written statement, while controverting the submissions of the petitioner in his rectification application, has submitted that he had conceived, coined and authored the artistic label comprising of the said bust, word VIJAYA, ANMOL -G and HING GOLI known as ANMOL -G VIJAY HING GOLI. The get up, lettering style, colour scheme and placement of said features in the said art work are in artistic manner. The said copyright is an original artistic work within the meaning of the Copyright Act, 1957 and in order to obtain the statutory rights, the respondent has applied for obtaining registration which now stands registered at number A -66496/2004. Respondent is the owner and proprietor of the said copyright and has the exclusive rights over the same within the meaning of, inter alia, section 14(1)(b) of the said Act. There is further descriptive narration of the business achievements of the respondent and how he had been using the said artistic work in furtherance of his business. He has further referred to a suit filed by him bearing number C.S. (OS) No. 1233 of 2004 which resulted into a compromise. Respondent has either controverted or denied all of the averments of the petitioner. Annexure I is the copy of letter dated 15.5.93 purported to have been written by one, Shri Manoj Kumar Aggarwal trading as M/s. M.M. Marketing Company to Sales Tax officer which letter the respondent claims to bear the photograph of the bust in question. Annexure II is the copy of the impugned registration and the bust allegedly to have been conceived by the respondent. Annexure III is the copy of the compromise suit settled by the respondent in another matter referred to above. Annexure IV are the trade mark registration certificates held by the respondent. Annexure V is a copy of an affidavit sworn by Shri Shiv Kumar Aggarwal father of the respondent, Shri Raj Kumar Saraf. Annexure VI are the copies of the newspaper advertisements and the sale bills.

(3.) LEARNED counsel for the petitioner argued that there is nothing to prove that the impugned artistic work was first published by the respondent in 1995 as claimed. He drew our attention to the provisions of section 3 of the Copyright Act, 1957 which provides as under: -