Intellectual
Property Rights Cases (January – June 2006): COPYRIGHT
CASES
1. Himalaya Drug Co. vs Sumit
2. Microfibres, Inc vs Girdhar
& Co. & Ors
3. Tractors and farm Equipment
Pvt Ltd vs Green Field Farm Eqipments Pvt Ltd
4. Deshmukh &Co. (Publishers)
Pvt Ltd. vs Avinash Vishnu Khandekar & Ors
5. Kiran Jain vs Kangaro
Industries (Regd) & Anr
6. Syndicate of Press of
University of Cambridge & Anr vs Kasturilal &
Sons
7. Diljeet Titus, Advocate
&Ors vs Alfred A. Adebare & Ors
8. Neha Bhasin vs Anand Raj
Anand and Ors
9. Dabur India Limited vs
Wipro Limited
10. Baharati Cellular Limited
& Anr vs Jai Distillers P. Ltd
11. La Chemise Lacoste &
Anr vs R.H. Garments
1.
Himalaya Drug Co. vs Sumit
2006 (32)PTC 112 (Del)
Facts:
The plaintiff, being a partnership firm by the name
of Himalayan Drug Co. had launched his own website by
the name of www.thehimalayadrugs.com in the year 1998
which had a distinct section called “HIMALAYAS
HERBS”, which talked about 209 herbs and information
about the same. The plaintiff had employed skill, labour
and money to develop this huge database of herbs. The
defendant company launched its own website by the name
of www.ayurveda.virtulave.net , which reproduced the
entire data of the plaintiffs herbal data. A clear comparison
showed that the defendant had copied the entire data
of the plaintiff word by word, which also included the
grammatical as well as syntactical errors. The plaintiff
was able to prove that the defendants have attempted
to pass of its herbal database as and for that of the
plaintiff’s herbal database.
Court held:
In an ex parte order that the plaintiff is entitled
to compensatory damages as well as decree in the sum
of Rs.7,94,227 on account of punitive/exemplary damages.
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2.
Microfibres, Inc vs Girdhar &Co. &Ors
MANU/DE/56/2006
Facts:
The plaintiff is a company incorporated under the laws
of U.S.A., they are engaged in the business of worldwide
manufacturing of and exporting of upholstery fabrics
which are printed in a very unique fashion. The plaintiff
company is the copyright owner of the artistic work
vested in the Upholstery Fabric Designunder the laws
of the United States of America. The plaintiff’s
contention is that the defendant 2 is manufacturing
and marketing upholstery fabric through defendant 1,
which is violating the plaintiff’s copyright under
section 51 of the Copyright Act, 1957.
There are many different issues that were discussed
namely:
a) The plaintiff claims to be the owner of the artistic
works of the upholstery fabrics and has placed strong
reliance on the Berne convention. The defendants claim
is that work is a design and is covered under the Designs
Act. After referring to many cases it was concluded
that if there is any protection that the plaintiff should
get, it should be under the Designs Act and not the
Copyright Act.
b) Section 15 of the Copyright Act, 1957 states that
the copyright subsists in any design that has been registered
under the Designs Act. At the time of registration of
the Design by the plaintiff the Designs Act,1911 was
applicable. The plaintiff admits that it has registered
the same under the Designs Act, England. It was decided
that the plaintiff would have gotten protection even
if they had registered the design under the old or the
new Act, however the same had not been done.
c) The plaintiff’s entire case was based on infringement
of the copyright in the artistic work, and since the
design of the plaintiff was ought to be registered under
the Designs Act and since they failed to do so, no relief,
could be claimed.
Court held:
Since the plaintiff did not fulfill the requisite formalities
in law, it shall not be eligible to avail the benefits
given by law.
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3. Tractors
and farm Equipment Pvt Ltd vs Green Field Farm Eqipments
Pvt Ltd
2006(32) PTC 343 (Mad)
The plaintiff carries
on business in the field of tractors Farm Equipments
for many decades and also has a separate department
for R & D, wherein they regularly invent new tractor
models. Defendant no. 2 was in employment with the plaintiff.
The plaintiff had invented two models of tractors that
the plaintiff had exclusive copyright to. The defendant
had unrestricted access to the details of techniques/
specifications relating to the said models. The plaintiff
had established that they were the owners of the copyright,
and the defendants were unable to adduce any evidence
to show the same. The design of the two tractors has
been registered under the Designs Act and they are exactly
the same except the name is different. The defendant
is not only liable for the infringement but also for
breach of confidentiality and the plaintiff is entitled
to interim injunction against the defendants for manufacturing
the tractors of similar specifications.
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4. Deshmukh
&Co. (Publishers) Pvt Ltd. vs Avinash Vishnu Khandekar
& Ors
2006 (32) PTC 358 (Bom)
Facts:
The plaintiff is a leading publisher carrying on business
in Pune, claiming copyright over 14 books published,
negative declaration that the defendants have no right
to publish any of the books while the copyright subsists
with the plaintiff to publish or print the books and
finally a decree of permanent injunction against the
defendants to restrain them from dealing with, transferring,
destroying or printing and publishing the same.
Court held:
With reference to the claim of the plaintiff’s
that a clear exclusive right exists with them it was
held that due to lack of evidence documentary and oral,
the plaintiff only had a right to publish the literary
work and did not have an exclusive right.
Further with reference to the nature of right given
under the agreement, whether the same would amount to
assignment of licence, the court held that while taking
an overall view of the matter and the agreement, in
no way can be stated that there was even a partial assignment.
Finally with respect to the interim order granted in
the First appeal, and since the same had been in force
for the past three and a half years, it would not be
prejudicial to the respondent if it is extended for
a period of 8 more weeks
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5.
Kiran Jain vs Kangaro Industries (Regd) &Anr
2006 (32) PTC 418(CB)
The appellant in the
instant case goes into appeal under section 72(1) of
the Copyright Act, 1957 and pleads for the liberal interpretation
of the term “any person aggrieved”.
Court held:
The court held that even though the Supreme Court in
a plethora of cases has considered the liberal interpretation
of the phrase “any person aggrieved”, the
point that needs to be considered is that there must
be some legal injury done, some harm caused or likely
to be caused to the appellant. In the instant case since
the appellants have failed to show any legal injury
caused, therefore the appellant has no locus standi
in the eyes of law.
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6. Syndicate
of Press of University of Cambridge & Anr vs Kasturilal
&Sons
2006 (32) PTC 487 (Del)
Facts:
The plaintiff, a publisher in the instant case publishes
books having questions and answers of which the defendant
has reproduced portions in all and published the same
in their name. The arguments of the defence are that
the books published for the University are distinguishable
from the plaintiff’s books. The defendant takes
cover under the umbrella of section 52(1) of the Copyright
Act, 1957 stating that this particular case scenario
falls within the exception of the same. Interim injunction
was granted by the lower court. The same was challenged
in the appeal.
Court held:
That comparing the extracts from both the plaintiff’s
and defendants books it seems that the defendant has
copied the extracts substantially at many places. Whether
this particular case falls within the exception of section
52(1) of the Act, was answered in the negative by the
court, the reason given thereof was that the reproduction
made was not as a part of the question and answers rather
the entire question and answers, hence the interim injunction
was confirmed.
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7. Diljeet
Titus, Advocate &Ors vs Alfred A. Adebare &
Ors
2006 (32) PTC 609 (Del)
Facts:
The plaintiff, an advocate who runs a law firm by the
name of Titus & Co a partnership firm had a dispute
with one of his associates a Nigerian national. The
associate at the time of leaving the firm copied the
details of the clients and their addresses. The plaintiff
claims copyright over the data copied by the defendant
and others as the defendants were in the employment
of the plaintiff during that time. The primary issue
to be considered in the instant case was whether the
copyright subsisted with the plaintiff as the defendants
were in the plaintiff’s employment. The defendants
claimed that according to Rule 49 of Section VII of
the Bar Council of India Rules an advocate cannot be
a full time salaried employee of any person, Government,
Firm, corporation or concern implies no advocate can
be in the employment of another as an employee to be
governed by the principles of contract of service.
Court held:
The court in response to the said arguments given by
the respondent stated that the object of this Rule is
to make a distinction where an advocate instead of practicing
professional law, decides to work for an organization
or a person on a full time salary basis.
Further, resolving the point of contract of service
the court referred to the Montreal Locomotive Case which
laid down a 4 fold test namely- control ownership of
tools, chance of profit and risk of loss.
Further, it was clearly established by the plaintiffs
that the work falls under literary work. The court held
that the defendants, were in contract of service and
any work done by them belongs to the plaintiff. The
defendants are free to practice their profession without
using the confidential information of the plaintiff
for their own benefit.
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8. Neha
Bhasin vs Anand Raj Anand and Ors
(MANU/ DE/1729/2006)
Facts:
The defendant had used the voice of the singer for three
versions of a Hindi film song produced by him. The plaintiff’s
case is that defendants – the music director and
the producer of the song had in all three versions of
the song shown her to be a back up vocalist when actually
she had sung the song along with the defendant. The
plaintiff claims that her name should appear instead
of the defendants as the lead singer of the songs. The
issue in the present suit is whether permanent injunction
should be granted against the defendants to use, sell,
distribute etc. the cassettes, compact discs of the
song without the name of the plaintiff as the lead singer.
Court held:
Considering all the versions of the song the court held
that the voice in the said songs was that of the plaintiff
and granted an interim order against the defendants.
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9. Dabur
India Limited vs Wipro Limited
Facts:
The plaintiff, Dabur India Limited contends that the
defendant company is airing a certain commercial with
respect to similar products , that is, honey, which
is disparages the plaintiff’s goods. The law permits
an advertiser to show that his product is the best but
to belittle some one else’s product amounts to
disparagement and is not permissible. The plaintiff
moves the court for injunction against the defendants
commercial. In the instant case to answer the question
of disparagement the court applied the test which laid
down that three things need to be kept in mind to answer
this question namely
a. Intent of the commercial,
b. Manner of the commercial and the
c. Story line and message to be conveyed through the
commercial.
In the instant case the counsel for the defendant stated
that the commercial shows that the product of the defendant
is much better than that of the plaintiff. It is finally
up to the viewer the way he wants to interpret it, as
in the case of any comparison, there are two ways of
interpreting anything.
Court held:
The Court while giving it’s final verdict kept
in mind all the possible factors and then finally said
that after a holistic view the defendants commercial
is not disparaging the product of the plaintiffs, hence
no interim injunction would be granted.
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10. Baharati
Cellular Limited & Anr vs Jai Distillers P. Ltd
(MANU/MH/ 0061/2006)
Facts:
The plaintiffs are a company who is engaged in cellular
business having a distinct mark “Air Tel”
that they have been using for a very long time. They
claim that they are well known and have a good business
in providing mobile networking services to people across
the nation. It is the case of the plaintiffs that the
defendants have been using the mark “Air Tel”,
which is deceptively similar to their mark, for their
alcoholic beverages. The plaintiffs claim not only that
the defendants are passing off their goods in the plaintiff’s
name but they are violating the copyright in the artistic.
The plaintiffs move the court against the passing off
as well as for the protection of the copyright.
Court held:
That the defendants have not given any substantial reason
for using the said mark and that in such circumstances
what the court really needs to look into is that the
business of the plaintiffs must be of such a nature
that it was worldwide and that by mere use of the brand
name or trade name it could be stated that the defendants
were seeking to pass-off his business as if it was the
business of the plaintiff. In the instant case the court
laid down that as prior users the plaintiffs’
are entitled to protect their copyright. The court passed
an injunction against the defendants for usage of the
mark “Air Tel”.
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11. La
Chemise Lacoste & Anr vs R.H. Garments
(MANU/ DE/ 1325/2006)
Facts :
The plaintiff is a company constituted under the laws
of France and has the trade mark ‘LACOSTE’,
‘CROCODILE’ and ‘CHEMISE LACOSTE’
registered as a device along with the word label under
206 countries and has been using the said trademark
for manufacturing T-shirts etc. since 1927. Further
it has the trademark registered in India also. The reproduction
of the artistic work and crocodile device by the defendant’s
leads to infringement of their copyright, also the manufacturing
of the T-shirts marked with the said trademark also
leads to infringement of their trademark and amounts
to passing off their goods in the name of the plaintiffs.
Court held:
That in the light of the facts and circumstances and
the evidence adduced by the plaintiff with respect to
the accounts, usage and registrations in different countries
a perpetual injunction is passed against the defendants
from further usage of the said trade mark. A mandatory
injunction is also passed against the defendants whereby
they are directed to hand over all the goods that they
manufacture in the name of the said trade marks’
to the plaintiffs. A copyright infringement is also
made out in favor of the plaintiffs in the artistic
work of the crocodile.
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