G. ROSAMMAL Vs. L. CHHOTALAL SAMJI VIRANI

JUDGEMENT

(1.) THIS is an application under section 50 of the Copyright Act, 1957 for expunction of registration number A -83467/2008 for the artistic work SUPER WITH DEVICE OF HORSE. The matter was heard at Chennai on 26.11.2009. Petitioner claims to be the holder of label mark SUPER consisting of a shadow device of horse in galloping position having user since 5th April, 2004. The earlier application for trade mark registration claimed by the petitioner is dated 19.1.2006. The later application of the petitioner, as claimed, is dated 14.1.2008. Petitioner has come to know that, besides impugned registration of copyright, the respondent has filed a similar trade mark application dated 21.12.2005 which she claims to have opposed. Reference to a civil suit filed by the petitioner against the respondent in 2009 has also been mentioned. Principal grounds taken in the rectification Application are that the Registrar of Copyright without going into the veracity of submissions made in Form IV and State of Particulars filed by respondent has proceeded with the registration. Violation of rule 16(3) of the Copyright Rules has been claimed. At the time of issuing of No Objection Certificate by the Trade Mark Registrar in 2008, two applications filed by the petitioner were pending with him. Objections have been taken as to the authorship of the work also. Objection has also been taken as to the language as English and Urdu having been mentioned in the application as the work bears English and Arabic writing.

(2.) RESPONDENT , an HUF, in its written statement has repudiated the contentions of the petitioner. Principal grounds taken are that the petitioner cannot have the benefit of rule 16 of the Copyright Rules since the petitioner had disowned its rights in the trade mark. Reliance in this regard is placed upon the email dated 29.12.2005 sent by the petitioner to the respondent in response to the legal notice dated 27.12.2005 of the counsel for the respondent. "We have no intention to manufacture someone else's brand. We expect your co -operation in this regard.". These concluding remarks in the email sent by one Kathir, Swarna Match Factory, 1 -A Gandhi Nagar, Kovilpatti 628502 to the respondent have been taken to conclude that the petitioner had disowned its rights in the trade mark.

(3.) IN the rejoinder filed by the petitioner, it has reiterated its earlier submissions. It has further added that no assignment deed of the author of the work has been submitted. It has pointed out that the date of creation claimed in the written statement is 1992 whereas the year of publication mentioned in the application before the Registrar is 2004.