RAJ KUMAR SHARAF Vs. VISAKHA CHEMICALS

JUDGEMENT

(1.) THESE are five applications under Section 50 of the Copyright Act, 1950 for expunction of registration numbers A -58545/2001 and A -61480/2002 of artistic works Ampachan and registration numbers A -61431/2002, A -64130/2003 and A -64132/2003 of artistic works Rochak in the Register. These matters were heard on 25th November, 2008 at New Delhi. petitioner in registration number A -58545/2001 has submitted that the author claimed in the impugned registration, Shri Rattan Lal Poddar, the partner in the firm Visakha Chemicals does not have any artistic capabilities or technical skills and thus the work does not appear to be his work. Even if it is assumed that the said Shri Poddar has authored the work, there is no assignment by him to the firm. Respondent firm has claimed in its complaint filed in the court of ACJM, Delhi under sections 77 -79 of the Trade and Merchandise Marks Act, 1958 and sections 63 -64 of the Copyright Act, 1957 that the complainant firm has invented and adopted the impugned artistic label. Impugned work was not first published in 1999 as claimed. Similar pleas have been taken in matter of registration number A -61480/2002 except that the submission that the impugned work was not first published in 1985 as claimed as the said Shri Poddar became a partner in the firm only in 1987 as per Form A issued by the Registrar of Firms filed by the respondent in the aforesaid criminal complaint. Further, as per affidavit sworn in 2003 by the respondent, Shri Poddar was only 36 years old in 2003. Thus he was of 18/19 years of age in 1985 when the impugned work is alleged to have been created. The impugned work thus possibly could have not been created by him at that age.

(2.) RESPONDENT in the written statement in relation to registration number A -58545/2001 has submitted that AM PACHAN as a trade mark was adopted by the respondent for the goods churan tablets in the year 1985. It has denied the averment as to lackness of originality of the impugned work. It has given description of the format and texture of the impugned label to buttress the assertion it being original work. Respondent has given particulars of various other copyright registrations it is holding. It has given sale figures of previous 20 years. It has given details of various cases where it got remedies in various courts as against infringers of its rights. Averments as to the lackness of artistic capabilities of Shri Ratan Lal Poddar are incorrect. Respondent adopted the trade mark AM PACHAN in the year 1985. Shri Ratan Lal Poddar was working in the firm M/S Vishakha Chemicals from 1982 to 1987. He then became a partner of the firm in 1987. Thus, the artistic work was developed by Shri Ratan Lal Poddar for the respondent in the course of employment in the family firm. Submissions made in relation to registration number A -61480/2002 are on similar lines.

(3.) IN the rejoinders by the petitioner relating to both the registrations, averments in the written statements in both the cases have been denied.