PREETI SUPARI Vs. ANIL TULSANI

JUDGEMENT

(1.) THIS is an application under section 50 of the Copyright Act, 1957 for expunction of restoration numbers A -79437/2007, A -79440/2()07, A -79443/2007, A -79446/2007. A -79450/2007 and A79422/2007. Matter was heard on 28th January, 2009 at New Delhi. Petitioner claims to have filed C.S. (O.S.) 644/2007 in Delhi High Court against the respondents seeking relief of permanent injunction restraining the respondents from using the impugned trade marks/labels, namely, MIRCH MASALA, BALLE BALLE, MIX FRUITS BALLS, NAGPURI SANTRA, CHATAK MATAK, AAM MODAK, LOVE LINE MANGO and GARAM MASALA. Petitioner also prayed for interim injunction restraining the defendants therein from using the impugned trade marks/labels till the disposal of the suit. After considering the averments made in the plaint as well as in the interim - injunction application, the Hon'ble High Court vide ex -parte interim orders dated 4th April, 2007 restrained the defendants therein from using the impugned trade marks/labels till the next date of hearing. Petitioner claims to have written eight separate letters to the Registrar of Copyrights dated 23.4.2007 requesting not to entertain any request by the respondents for registration of Copyright in the impugned trade marks/labels without prior notice to the petitioner. Petitioner has produced copies of all eight letters duly acknowledged in person by the office of the Registrar of Copyrights on 24.4.2007. Petitioner claims to have sent the copies of all eight letters to the Assistant Registrar of Trade Marks for his information. Assistant Registrar of Trade Marks, on receipt of the petitioner's letters, issued show cause notices to both respondents through their counsel asking them as to why the No Objection Certificates granted under section 45 of the Copyright Act, 1957 be not cancelled. Petitioner has submitted copies of those notices. In the first week of July, 2007, respondent No. 1 herein supplied a list of documents to the counsel of the petitioner which have been filed in the aforesaid suit No. 644 of 2007. This list was accompanied by copies of copyright registration certificates hearing numbers A -79437/2007, A -79440/2007, A -79443/2007, A -79446/2007, A -79450/2007 and A -79422/2007. All registrations are in favour of respondent No. 1 except A -79446/2007 which is in favour of respondent No. 2 who is also shown as the proprietor of the same M/s. A.D. Food Products. Petitioner has submitted that two persons cannot be the proprietor of the same concern at the same time. Petitioner filed a writ in Delhi High Court which was ultimately dismissed as withdrawn with the specific direction to the Copyright Board that the proceedings pending before it would be expeditiously considered. Petitioner has taken the grounds of lackness of originality and violations of statutory rights relating to No Objection Certificate under section 45 of the Copyright Act, 1957 and rule 16 of the Copyright Rules, 1958.

(2.) RESPONDENT , Shri Anil Tulsani, in the written statement, in his preliminary objections has objected to filing of a joint application for rectification of six artistic works. According to him, there should have been separate applications for all registrations. Respondent has submitted that he filed an FIR bearing number 78/2007 on 31.3.2007 against the petitioner. Petitioner concealed the fact while obtaining ex parte injunction for Delhi High Court in CS(OS) No. 644/2007. On entering into appearance in the said suit by the respondent, the Hon'ble High Court was pleased to vacate the injunction and dismissed the injunction application of the petitioner and restrained the petitioner herein from manufacturing, marketing and selling the confectionery items/sugar candies under eight works. Respondent has referred to certain trade mark applications filed by him. In all six impugned registrations, date of publication has been mentioned as 2001 whereas, according to the admitted case of the petitioner, he came into business in 2004. Respondent has submitted a copy of the affidavit of Shri Alakraj, the printer of his labels purported to have been filed in Delhi High Court in C.S.(OS) No. 644 of 2007, submitting that he had been printing the art work of various titles. Copy of affidavit, though mentions type print year 2007, does not bear date and month of signature of verification. So is the position with the copies of affidavits of various dealers as Annexure I filed in support of sale of the respondent. In parawise comments, the respondent has generally controverted the averments of the petitioner. In reply to the grounds taken by the petitioner, respondent has submitted that the impugned artistic works have been conceived and adopted by the respondent much prior to the petitioner for which he has submitted the affidavits of the artists who had created these labels.

(3.) LEARNED counsel for the petitioner, at the outset, took us to the copies of impugned registration certificates. He submitted that, in relation to all six registrations, applications dated 14.4.2007 were submitted in the Copyright registry on 16.4.2007. Registrations were granted and certificates issued in all cases on 23.5.2007. He took us to the copy of the suit C.S. (O.S.) No. 644/2007 filed in Delhi High Court on 3.4.2007. In para 4 of the plaint for the suit, the petitioner herein has claimed adoption of eight labels, namely, MIRCH MASALA, BALLE BALLE, MIX FRUIT BALLS, NAGPURI SANTRA, CHATAK MATAK, AAM MODAK, LOVE LINE MANGO AND GARAM MASALA. Delhi High Court, in its ad interim order dated 4.4.2007 restrained respondent herein from selling, marketing, advertising or using the impugned eight trade marks/labels. Learned counsel took us to the copies of eight notices all dated 23.4.2007 served upon the Registrar of Copyrights and acknowledged in his office on 24.4.2007 whereby the petitioner submitted for his interest in eight labels and requested not to proceed for registration in any of the applications relatable to the subject matter of his trade marks/labels. He sent the copies of these notices to the Registrar of Trade Marks for similar action in relation to No Objection Certificates requested for, if any, under section 45 of the Copyright Act, 1957. He took us to the copies of eight letters of the Registrar of Trade Mark office all dated 3.5.2007 addressed to the counsel for the respondent herein to send his comments within 21 days to the objections of the petitioner herein. In conclusion, learned counsel requested for expunction of the registration in view of statutory violation on the part of the respondent in matter of sub -rule (3) of rule 16 of the Copyright Rules, 1958 and non -compliance of sub -rule (5) of that rule by the Registrar of Copyrights. In this matter, he relied upon Lal Babu Priyadarsh and another v. Badshah Industries and others, : 2002 (25) PTC 173 (Patna) (DB).