DEVINDER KAUR Vs. BRAKES INTERNATIONAL

JUDGEMENT

(1.) THESE are two applications filed under section 50 of the Copyright Act, 1957 for a expunction of registration numbers A -54595/1998 and A -57830/1999. These matters were heard on 25th November, 2008 at New Delhi. Petitioner in his similar applications filed on 1st September, 2001 submitted for the expunction of the above registrations on the ground of lackness of originality and authorship of the works and first publication claimed therefor and concealment of material particulars from the Registrar of Copyrights. Copyright Board office vide its letter dated 3.9.2002 asked the respondent to file the reply and documents relied upon within two weeks. Respondent filed its reply on 28.12.2004 rebutting the submissions of the petitioner. Learned counsel for the petitioner under his letter 6.1.2005 submitted an application of the petitioner requesting for not taking on record the reply of the respondent being abuse of process for delayed response. Copyright Board in its order dated 8.2.2005 dismissed the application giving the reason that matter has been decided between the same parties in an early case. High Court of Delhi in its order dated 18.2.2008 restored the said applications Nos. 15 and 16 of 2004 to be heard by the Board with the observations that the impugned order dated 8.2.2005 passed by the Copyright Board was based on an erroneous premise that the application No. 15 and 16 of 2004 were based on relief's identical to that claimed in application No. 8/1988.

(2.) ACCORDINGLY , the matter was listed for hearing in the sitting of the Copyright Board held at New Delhi on 29.7.2008. Parties were directed to file their written submissions in the office of the Copyright Board. In the meantime, learned counsel for the petitioner moved an application for substitution of legal representatives of the petitioner - petitioner having expired in the meantime. The Board in its sitting held on 29.9.2008 allowed substitution of legal representatives of the deceased petitioner, Shri Tilak Raj on the basis of application dated 27.9.2008 moved in this regard. Counsels from both sides were directed to file the written submissions, as earlier directed, within two weeks. Board, with the concurrence of counsels from both the sides, decided to pass orders based upon the written submissions so filed and the pleadings available on the files.

(3.) COUNSEL for the petitioner, in his submission, took the preliminary objection to the acceptance of the written statement filed belatedly by the respondent, that is, on 28.12.2004. He has assailed the originality of the work, the authorship by Shri Trilok Kumar and certificate, if any, issued under section 45(1) of the Copyright Act, 1957 by the Registrar of Trade Marks. Besides, he has assailed it on the ground of non -compliance of requirement of rule 16(3) of the Copyright Rules, 1958. There is nothing in his submissions to substantiate the grounds relating to originality of the work, authorship of Shri Trilok Kumar and certificate under section 45(1) of the Copyright Act, 1957. He has given detailed reasons in support of his claim under rule 16(3) of the Copyright Rules, 1958. Counsel for the respondent, in his submissions, has taken preliminary objections as to the maintainability of the application for the reason the petitioner having expired and the petitioner not being an aggrieved person. He has submitted in evidence the copy of an assignment deed executed by the deceased petitioner in favour of the respondent whereby trade mark registration 253919B and copyright registration number A -4103/69 were assigned by the petitioner in his favour. Learned counsel has submitted that petitioner has filed two suits against the respondent in 1988 which are still pending in Delhi courts. He has further submitted that the respondent has filed a suit against the petitioner in 1997 which is still pending in Delhi courts whereunder the petitioner has been injuncted from using the mark FINEX. In its sitting held on 25.11.2008, the Board decided to proceed with the finalization of the order based upon the written submissions filed and the pleadings available on the files. In so far as the issues relating to the originality of the work, authorship claimed and the year of publication claimed, there is no evidence of substance to buttress the submissions made from both the sides. So is the position in relation to the claim about the veracity of certificate under section 45(1) of the Copyright Act, 1957. It takes us immediately to the requirement of compliance of provisions under rule 16(3) of the Copyright Act, 1957. There is enough from both sides in this regard. Learned counsel for the petitioner has submitted that three suits are pending in Delhi courts between the parties out of which two were filed by the petitioner against the respondent in 1988 and one suit was filed by the respondent against the petitioner 1997. The fact has been corroborated by the learned counsel for the respondent in his submissions. Impugned registrations were granted in 1998 and 1999 and applications therefor were filed under the Registrar of Copyright Office file number F32 -46/98Co and F32 -2265/99Co respectively. Suits inter vivos were filed in 1988 and 1997 on the same subject matter. In between two contesting parties, which one filed a suit against the other does not matter. In either situation, the applicant for registrations has a notice of the other person's interest in the subject -matter of the copyright and thus is obligated to the compliance of requirement of rule 16(3) of the Copyright Rules, 1958. Respondent has failed on this score. In view of that registrations granted do not stand the scrutiny of the statutory requirements and are required to be taken out of the Register. Registrar shall expunge the entries in both the cases from the Register. No orders as to costs.