ENERCON SYSTEMS PVT. LTD. Vs. REGISTRAR OF COPYRIGHTS

JUDGEMENT

(1.) THIS is an appeal under sub -section (1) of section 72 of the Copyright Act, 1957 against the order of the Registrar of Copyrights refusing to register the literary works of the appellant. In the present case, the date of the order of the Registrar rejecting two applications for registration of the literary works of the appellant is 3.12.2003. The appellant filed the appeal against the decision of the Registrar on 7.6.2004. Section 72(1) provides that an appeal against the final decision or order of the Registrar may be filed before the Copyright Board within three months of the date of the decision of the Registrar. There is a delay of 3 months and 4 days in filing the appeal. The appellant had filed an application for condonation of delay. Although there are no specific provisions under, the Act for condonation of delay by the Board, yet the Board is guided conceptually by the provisions of the Civil Procedure Code in matter of its procedure. There is no opposition on this score from the respondent. In view of that it shall be fair to condone this delay in filing the appeal and accordingly we allow it.

(2.) ACCORDING to the appellant, it moved its applications both dated 6.11.2002 on 29.11.2002 for registration of its literary work titled "Contents of Corporate Campaign" and "Contents of Enercon Advertisement". Both works comprise text, design as well as illustration and are original literary work of the appellant. Ms. Hema Hattangady, the Managing Director of the appellant company is the author of these works and all rights in the works have been vested in the appellant company. Both the works were first published in India on 12.8.2002 and have been used by the appellant since their first publication. Respondent, the Registrar, relying upon his earlier decision in a matter relating to M/s. Overnite Express Limited rejected to register the literary work on the ground that the same contain only advertisement slogans and general instructions which are not entitled to be registered as per the provisions of the Copyright Act, 1957. As per the appellant, Overnite case and the decision in the case of R.G. Anand v. Delux Films and others, : AIR 1978 SC 1613 : PTC (Suppl) (1) 412 (Del.) (DB) are not applicable in this matter. The only other Indian authority relied upon by the Registrar, that is, Pepsi Co. Inc. and another v. M/s. Hindustan Coca Cola and others,, 2001 (21) PTC 699 for the proposition that slogans are not copyrightable has been overruled by the Hon'ble Division Bench of the High Court of Delhi in appeal in Pepsi Co., Inc. and others v. Hindustan Coca Cola,, 2003 (27) PTC 305 wherein the court has held that slogans which form the theme of the advertisement of the applicant's products are entitled to copyright protection. Two foreign authorities of 1991 and 1928, namely, Noah v. Shuba (1991) FSR and Sinanide v. La Maison Kosmeo, (1928) 139 LT 365 relied in Overnite Express case are inapplicable to the present case as the same were short descriptive phrases where the same ideas could not be expressed otherwise. Rose v. Information Services, (1987) FSR 254 relied upon by the Registrar is too inapplicable since it was held therein that a title 'the lawyer's diary' is not entitled to copyright protection whereas the work of the appellant is not merely a descriptive title. Registrar failed to appreciate that it is well established law that slogans are entitled to protection as literary work under the Copyright Act, 1957. Registrar, the respondent herein, did not file any reply. Accordingly, learned counsel for the appellant, while arguing the matter on the lines of submissions made in the petition -, put reliance upon Macmillan and Company Ltd. v. K and J Cooper, : AIR 1924 PC 75, Dr. Pepper and Co. v. Sambo's Restaurants Inc. reported in, 517F. Sup. 1202, Kleier Advertising Agency Inc. v. Premier Pontiac Inc. reported in, 2 USPQ 2d 1152 and more importantly upon Pepsi Co. Inc. and others v. Hindustan Coca Cola Ltd. and another, : 2003 (27) PTC 305 (Del.) (DB) and submitted that the law is now well settled that slogans are entitled to protection as literary work under the Copyright Act, 1957. It shall be relevant to cull out the relevant part of the decision of the Registrar rejecting the applications for registration of the literary work. Letter dated 3.12.2003 of the Deputy Registrar conveying the decision of the Registrar reads as under: -