Excerpt: The unjust enrichment or illegal profits by the infringing party by way of impinging upon the copy right of the other person cannot be permitted. This is why Section 55 of the Copy Right Act empowers the Court by way of civil remedy against infringement of the copy right. By virtue of these provisions the owner of the copy right is entitled to all such remedies by way of injunction and otherwise as conferred by law for the infringement of the copy right. The only defense available to the alleged infringing party is that he must prove that at the date of infringement he was not aware and had no reasonable ground for believing that copy right subsisted in the work. Again there is presumption in the case of literary, dramatic, musical or an artistic work that the person whose name appears on copies of the work published or in the case of an artistic work that appears on the container of packing he has the copy right of such work unless the contrary is proved.
JUDGMENT J.D. Kapoor, J.
1. Through this suit permanent injunction restraining the defendants from infringing the plaintiff’s copy rights with regard to the packing material used by the plaintiff the product NILVERM which is an artistic work has been sought as it amounts to infringement of the copy right of the plaintiff in terms of Section 13 & 14 of the Copy Right Act, 1957.
2. Plaintiff is a company incorporated under the Indian Companies Act, 1956 and has its registered office at Mumbai. It is engaged in the manufacture, marketing and distribution worldwide of a wide range of products known for their efficacy, reliability and excellent quality.
3. The peculiar features of the packing material of this product are as under:-
(i) Its base is in white colour.
(ii) There are two horizontal green bands of equal dimensions on the top.
(iii) The name of the Chemical composition of the drug Tetramisole in green colour wit the style and size of the English alphabet in it.
(iv) There are five kinds of animal heads in circles with green colour background.
(v) The size and the colour of the English alphabets used in describing the brand name and directions for use are printed in English in black colour.
4. It is averred that during the second week of August, 2000 the plaintiff through its representative became aware that the defendant is manufacturing and marketing Tetramisole soluble powder under the very similar get-up, colour scheme, lay out etc. as that of the plaintiff’s products and thereby had infringed the copy right of the plaintiff.
5. The summons and the notice were duly served upon the defendants but they opted not to contest the claim of the plaintiff and allowed themselves to be proceeded ex parte. However by way of evidence the plaintiff has filed the affidavit.
6. Section 2(c) of the Copy Right Act, 1957 defines artistic work as under:-
“2. Interpretation- In this Act, unless the context otherwise requires-
(c) “artistic work” means-
(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;
(ii) an [Work of architecture] and
7. Section 13 of the Act provides that copyright shall subsist throughout India in the original literary, dramatic, musical and artistic works, cinematograph films, sound recording.
8. Section 48 provides that the register of the copy right would be deemed as a prima facie evidence of the particulars entered therein.
9. Section 51 provides protection to the person claiming copy right in a work including the artistic work. It provides that copy right is deemed to be infringed when any person without a license granted by the owner of the copy right of the Registrar of Copyrights under this Act or in contravention of the conditions of a license so granted or of any condition imposed by a competent authority.
10. Any colour scheme or get up or layout or arrangement of any alphabets or features is undoubtedly an artistic work. There is no gainsaying the fact that the commercial concerns or the trading companies always seek the services of an artist for making either the packing or even on the containers of the product manufactured by them for providing a distinct attractive identity. It is needless to say that such identity as to the distinct features comprising of colour scheme, get up, layout or arrangement or features involves huge expenses and over the period identifies the manufacturers with their product so much that even the unwary or illiterate customers using the said product identify the product from the colour scheme, get up and lay out and arrangement of features of alphabets imprinted either upon the containers or the packing.
11. The artistic work or the colour scheme, get up lay out or arrangement of distinctive features including the style of the letters or alphabets confers the copy right upon the owner and thereby entitles him to protect the same by way of statutory remedy provided under the aforesaid Section of the Copy Right Act. The main object to give such protection is to prevent the adoption of the colour scheme, get up and lay out or other features either wholly or partly or in such a manner that may create an impression or confusion or deception in the minds of the purchasing public as to source and origin of the products. The customers or the purchasing public is bound to associate the goods of the infringing party with the goods of those who have the copy right over it as there is no other design of the infringing party except to trade and cash upon the goodwill and reputation earned over the period by incurring huge expenses on its advertisements.
12. The unjust enrichment or illegal profits by the infringing party by way of impinging upon the copy right of the other person cannot be permitted. This is why Section 55 of the Copy Right Act empowers the Court by way of civil remedy against infringement of the copy right. By virtue of these provisions the owner of the copy right is entitled to all such remedies by way of injunction and otherwise as conferred by law for the infringement of the copy right. The only defense available to the alleged infringing party is that he must prove that at the date of infringement he was not aware and had no reasonable ground for believing that copy right subsisted in the work. Again there is presumption in the case of literary, dramatic, musical or an artistic work that the person whose name appears on copies of the work published or in the case of an artistic work that appears on the container of packing he has the copy right of such work unless the contrary is proved.
13. Aforesaid provisions of law and the copying of the artistic work of the plaintiff by the defendant wholehog is tantamount to infringement of the provisions of the Copy Right Act and entitles the plaintiff to protect the same by way of decreeing the suit. the defendants are hereby permanently injuncted from manufacturing, offering for sale or advertising in Indian or directly or indirectly dealing in Tetramisole Soluble Powder as well as dealing in veterinary preparations in the colour scheme, get up and layout of the carton/container/packing material like Annexure X which is substantial reproduction of the plaintiff’s NILVERM packing material.
14. The suit is decreed accordingly with no order as to costs.
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