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Marico Ltd. Vs. Jagit Kaur - (High Court of Delhi) (20 Apr 2018)

Any entry made of a work which is not an original work would be an entry wrongly made in the Register

MANU/DE/1486/2018

Intellectual Property Rights

In instant case, before the Copyright Board, an application was preferred under Section 50 of the Copyright Act, 1957 by Hindustan Unilever Limited, the predecessor of Marico Ltd., Appellant herein, against J.K. Enterprises ('Respondent'). The Appellant sought rectification of the impugned entry in the Register of Copyrights bearing No. A-64850/2003 dated 25th July, 2003, which is an artistic work for the label "NIHAL UTTAM". The Appellant claims to be the successor-in-interest of Tata Oil Mill Company Ltd. ('TOMCO') which had coined the brand name 'TATA NIHAR'. In 1994, the brand was amended to 'NIHAR' and was used in respect of hair oil, coconut oil, cosmetics, perfumes, etc. The earliest trade mark registration of the word "NIHAR" dated back to 24th October, 1994 and has since been registered in India and in several other countries including Qatar, Kuwait, Malaysia, Bangladesh, Nepal, UAE, Saudi Arabia, Yemen, Mauritius and others. The question that arises in present case is as to whether the Respondent's impugned copyright registration is an "entry wrongly made in or remaining on the Copyright Register".

Any entry made of a work which is not an original work would be an entry wrongly made in the Register. A perusal of the Respondent's registration shows that, the Respondent claims the "NIHAR UTTAM" label extracted above to be an 'artistic work' published for the first time in 2002. Copyright registration can only be granted to original artistic works. Registration of copyright cannot be granted to works which are a reproduction or imitation of other original works. If any person has obtained registration of copyright of a work which is not an original work under Section 13 of the Copyright Act, such a registration or entry made in the register would be an entry wrongly made.

A perusal of the labels extracted shows that, the comparative features of the two labels are so similar that "NIHAL UTTAM" label can safely be termed as colourful imitation or substantive reproduction. Colour scheme between the two labels is the same. The manner in which the coconut tree is arranged is same, the arrangement of two broken coconuts is similar. Due to the long user in the market, the Appellant's label was quite extensively used and hence, the Respondent had access to the Appellant's label. It is the settled position in law that when two labels or artistic works are compared, the broad features are to be compared and not by putting the two labels side by side.

The Copyright Board has made fundamental errors in analysing the two artistic works. In matters of rectification of copyright, a lack of originality in the work is the touchstone. The Board is concerned with artistic features in the label and not with the trademark. The artistic features and their comparison clearly shows that, the Respondent's label has been clearly inspired by the Appellant's label and the features, colour combination, get up, etc., are also substantially similar. The Respondent's publication and the creation of the work are also subsequent to that of the Appellant. Under such circumstances, the rejection of the rectification application on the ground that, the word "NIHAR" comes from Sanskrit and "NIHAL" owes its origin to Persian is completely contrary to law.

The documents were sufficient to show that the Appellant's work/label was available earlier in the market. Thus, the Appellant's labels are original artistic works. Owing to the similarity between Appellant's and Respondent's label, it can be safely concluded that, the Respondent's label, subject matter of the impugned Copyright registration, is not an original artistic work.

The Respondent has also now gone out of business and the Respondent's address is also not traceable. Under these circumstances, the Copyright Board's judgment is set aside. The Copyright registration for the artistic works bearing No. A-64850/2003, described as 'NIHAL UTTAM' is cancelled/rectified. The same is directed to be removed from the Register of Copyrights. Appeal allowed.

Tags : REGISTRATION   ENTRY   RECTIFICATION  

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