AURIO PHARMA LABORATORIES PVT. Vs. PREM PATHAK

JUDGEMENT

(1.) THIS is an application under section 50 of the Copyright Act, 1957 for the rectification of the Register for the expunction of registration number 75262/2005 dated 22nd December, 2005. According to the submissions in the petition, petitioner number 1 is a company registered under the Companies Act which took over the business from other petitioners. Petitioner is the proprietor of label GASSANOL and has the copyright also therein. Petitioner No. 2 obtained the registration of trade mark therefor on or about 20th September, 1978 claiming user since 1972. Necessary deed of assignment together with the goodwill of the business has been executed. In or around September 2005 the petitioner number 1 came across a product of the Respondent No. 1 with the identical and/or deceptively similar trade mark GAS ANAL which was being sold by the respondent No. The from various medicine shops. The name GAS ANAL and the label used by the respondent No. 1 are phonetically, visually and structurally identical and/or deceptively similar to the petitioner's trademark and label and constitute an infringement of petitioner's registered trademark. Petitioner through its advocate's letter dated 19th September, 2005 called upon the respondent No. 1 to cease and desist from using the petitioner's trade mark and the petitioner's artistic label. Respondent No. 1 through his letter dated 9th November, 2005 denied the allegations and informed that his trade mark and copyright were already registered. The petitioner submits that the requirements of section 45(1) of the Copyright Act, 1957 have not been complied properly in accordance with law., Further, the provisions of rule 16 of the Copyright Rules have not been complied with.

(2.) RESPONDENT No. 1 in his reply statement has submitted that he got the artistic work GASANAL registered under number A -75262/2005 after obtaining no objection certificate from the Trade Marks Registry, Mumbai. He denies the averments of the petitioner.

(3.) LEARNED counsel for the petitioner argued as to the violation of rule 16 of Copyright Act, 1958. He alleged that the certificate under section 45 of the Copyright Act, 1957 has been obtained fraudulently since there is no disclosure as to the petitioner's mark in the said certificate. The impugned work does not meet the standards of originality as envisaged under section 13 of the Copyright Act, 1957. Learned counsel drew our attention to para 24 of the petition wherein it has been submitted that the respondent's application dated 12.10.2001 for registration of trade mark GASANAL was advertised in the Trade Marks Journal dated 25th September. 2003 as "proposed to be used" implying non user of the mark at least till 12.10.2001. Learned counsel drew our attention to ad interim order of the High Court at Calcutta passed on 2nd August, 2006 and 7th August, 2006 placed at Annexure J of the petition. Learned High Court had issued an ad interim order against the respondent valid till 15th September, 2006 or an earlier date if the matter is decided before 15th September, 2006.