VISAKHA CHEMICALS Vs. RAJ KUMAR SHARAF

JUDGEMENT

(1.) THESE two applications for rectification of the Register of Copyrights under of the Copyright Act, 1950 by expunction of registration numbers and A -66417/2004. These matters were heard on 25th November, Delhi. Submissions made by the petitioner in the petition for expunction of registration number A -75765/2006 have been included in this paragraph. Petitioner is a partnership firm registered under the Indian Partnership Act, 1932. It is having trade mark registration for the word ROCHAK per se under number 484698 Effective from 25.1.1988. It is having pending applications for registration of trade marks AM PACHAN. It is having copyright registrations for artistic work AM PACHAN under registration numbers A -58545/2001 and A -61480/2002. It is having copyright registrations for artistic work ROCHAK under registration numbers A61430/2003, A614311/2002 and A64132/2003. It filed number of cases against the infringers of its marks. Petitioner had filed criminal complaints against the Respondent for infringement of its marks. A suit for infringement of trade mark, passing off of trade marks, infringement of copyright, rendition of accounts, etc. filed by the petitioner against the respondent is pending in Delhi High Court under No. CS(OS) 10 of 2004. In a criminal petition filed by the petitioner before Delhi High Court as Criminal Misc. (M) No. 3539 of 2002 which is still pending in the Hon'ble High Court, the hon'ble court bound down the respondent herein till decision of the complaint. Grounds taken primarily for the expunction are - (a) respondent was fully aware of the fact that the petitioner has claim over the artistic work AM PACHAN and ROCHAK as complete facts were furnished in the complaint filed against the respondent in matter of violation of Trade and Merchandise Marks Act, 1958 and the Copyright Act, 1957; (b) respondent had concealed from the Registrar of Copyright the fact of his being released on bail on the complaint of the petitioner; (c) In Form IV, column 2, respondent has concealed the interest of petitioner in the alleged artistic work; (d) there is a blatant violation of provisions included under an amendment of 1983 in the nature of a proviso to sub -section (1) of section 45 of the Copyright Act, 1957, consequential changes in the Copyright Rules, 1958 and the Trade and Merchandise Marks Act, 1958 were included.

(2.) RESPONDENT in the written statement has referred to some news paper advertisement of 1997 where the mark published as advertisement is stated to be different from the registered artistic works of the petitioner under numbers A -58545/2001 and 61480/2002. Respondent has pointed as to wrong description of certain telephones on the bills produced by the petitioner herein in an opposition of the respondent bearing No. DEL -137636 against the trade mark application of the petitioner under No. 888550. We have carefully gone through the copies at Annexure C and D both are not copies of the bills. C is a copy of the bill and D is a copy of an invoice. Hence from different compilations. Bill has the telephone number of office at Kucha Hafiz Bana, Bahadur Garh Road, invoice has telephone numbers of office at Kucha Hafiz Bana, administrative office at Hathi Khana, Azad Mark and factory at Village Badli. Same telephone, in both the bill and the invoice, at office at Kucha Hafiz Bana has been mentioned. Of course, telephone number at factory in Badli in the bill is in seven digits. Hence, a reckless allegation on the part of the respondent. Sale figures mentioned by the petitioner have been denies by the respondent. Respondent has denied as to the knowledge of cases against other parties filed by the petitioner mentioned by it in the petition. Respondent has claimed that the criminal proceedings referred to by the petitioner against him has no bearing to the matter. Respondent has claimed the trade mark registration number 888550 of the petitioner as being wrong to which he filed the opposition. Respondent has denied the averments of the petitioner on merit except as respect the matters which are subject of judicial proceedings. His copyright registration under No. A -75765/2006 for artistic work ANMOL -G AM PACHAK WITH DEVICE OF MANGO AND CHILDREN is quite distinct and different from the art work AMPACHAN of the petitioner. Respondent has denied the interpretation given to statutory provisions including provision in the nature of rule 16 as wrong. Petitioner is not an interested person in terms of rule 16.

(3.) EVIDENCES by affidavit from both the sides are reiteration of facts earlier submitted under the petition and the written statement respectively. Nothing new material to substantiate the claims has been submitted.