JUPITER MATCH WORK Vs. KAVERI MATCH WORKS

JUDGEMENT

(1.) THIS is an application under section 50 of the Copyright Act, 1957 for rectification of the Register of Copyrights in relation to registration number A -58815/2001. According to the rectification application dated 6.8.2001 filed by the petitioner, being a proprietary firm, it is the proprietor of the distinctive trade mark label, HORSE, a device of a horse standing on two legs. Respondent is also carrying business in safety matches and is purportedly using the trademark RED HORSE, a device of horse standing on two legs. Petitioner claims that it had been using its mark of HORSE since 1957. Its mark is registered under the Trade and Merchandise Marks Act, 1958 as of date 8.4.1980 and it has been renewed from time to time. Respondent has suppressed material facts and had fraudulently adopted their RED HORSE trademark label with a dishonest intention of passing off of their safety matches. Respondent has wrongly and erroneously obtained Certificate for use under section 45(1) of the Copyright Act, 1957. Respondent has furnished the name of S. John Joseph, M/s. Sri Siva Arts as the author of work relating to the impugned registration. This person cannot and could not have been the author of the said work in law. By a mere look at the artistic work of the applicant kept along with the work of the respondent, it is quite apparent that the label is a virtual copy of work of the applicant. Applicant, in response to the Registrar of Copyright office letter dated 2.4.2002, sent per his letter dated 22.6.2002 seven copies of the infringing work sought to be expunged which are on file.

(2.) OFFICE of the Register per its registered letter dated 11.11.2002 asked the respondent to file the written statement under copy to the petitioner. Respondent did not file any papers. Accordingly, the matter was listed for hearing at Tirupati on 15.9.2004. Proxy counsel for the respondent requested for adjournment on the ground that the notice for the sitting had been received late by them. Board allowed adjournment vide its order dated 15.9.2004 on the condition that the written statement and affidavit by way of evidence and relevant documents shall be filed by the respondent within 40 days of the date of that order. Counsel for the petitioner per his letters -dated 16.10.2004 and 23.10.2004 to the Board drew its attention to the delay and non compliance of the instructions of the Board by the respondent in non filing the written statement and the evidence. Matter was fixed for hearing on 2.2.2006 at Pondicherry. Learned counsel for the respondent brought it to the notice of the Board that the respondent, M/s. Kaveri Match Works has assigned all his rights in the work bearing Registration No. A -55815/01 dated 18.2.2001 to M/s. Vinesh Traders, Jalgoan and he undertook to submit a copy of the assignment deed to the Board and also a copy, thereof to the applicant. Nothing was heard in the matter from the respondent and the assignee thereof. The matter was listed for hearing in the meeting of the Board at Bangalore on 12.11.2007. Learned counsel for the respondent undertook to supply copy of the assignment deed and the written statement within eight weeks from 12.11.2007 to the Board and the petitioner. On the request of the counsel from the both sides, the matter was listed for hearing on 24.3.2008 at New Delhi; Nothing was received from either the original respondent or the purported assignee. In the sitting of the Board held at New Delhi on 24.3.2008, counsel for the petitioner appeared and the respondent, Shri Salvan Koruppaiya Pillai, Proprietor of M/s. Kavari Match Works appeared in person and the latter submitted a written request that the next hearing of the matter be listed in the South Zone. So far, since 2001 when the application for rectification was filed and the first notice thereof had been sent by the Board to him on 11.11.2002, he has not filed a scrap of paper in rebuttal. The Board took a serious view of the matter and did not like to prolong the matter further. Accordingly, on the submission of both the parties, it agreed that they would send their written arguments to the registry of the Board within two months from 24th March, 2008 and the Board shall decide the matter on the basis thereof.