AVON CYCLES LTD. Vs. GAZEBO INDUSTRIES LTD.

JUDGEMENT

(1.) THIS is an application under section 50 of the Copyright Act, 1957 for the rectification of the register for expunction of an entry wrongly remaining on the said register. As per submissions of the petitioner, it is a public limited company having its registered office at Ludhiana. It is engaged in the business of manufacturing, marketing and exporting bicycles, bicycle parts and accessories of bicycles and other cognate and allied goods since 1952 under the trade mark AVON. It came to the notice of the petitioner that the respondent sought a copyright over a word AVION. The addition of the letter "I" makes no difference as the trade mark 'AVON' of the petitioner is a famous trade mark. The respondent under the guise of copyright registration is merely seeking a tool to further its nefarious designs of infringing and violation the statutory and common law rights of the petitioner. Much of the other arguments of the petitioner are not relevant here as they pertain to the expunction of a trade mark registration from the register of trade marks. Petitioner has contested the originality of the artistic work 'AVION' registered at number A -55746/99. The petitioner has not submitted the copy of the impugned certificate of registration. The petitioner has explained the historical background of inclusion of proviso to sub -section (1) of section 45 of the Copyright Act, 1957 relating to requirement of a relevant certificate from the Registrar of Trade Marks where the artistic work proposed to be registered is to be used in relation to goods. It has further explained the consequential amendments to the Copyright Rules and the Trade and Merchandise Marks Rules, 1959.

(2.) RESPONDENT did not file the written statement and the evidence by way of affidavits.

(3.) NONE appeared on behalf of the respondent. Counsel for the petitioner filed a certified copy of the decree passed by the District Judge, Ludhiana consequent upon a settlement arrived at between the petitioner and the respondent in relation to certain trade mark matters and herein impugned copyright registration of the artistic work. The relevant extract of the decree relating to the impugned copyright registration is as under: -