1. The Respondent-plaintiff filed RCS No.3/2004, making a grievance about infringement of the Copy Right of its label at Annexure A to the plaint by the defendants by reproducing the same in material form and/or printing publishing or using the disputed labels. The plaintiff sought for permanent injunction restraining the defendants from committing the acts of infringement. The plaintiff also prayed for damages to the tune of Rs.1,00,000/- (Rupees one lac) each against the defendants Nos.1 and 2, so also sought mandatory injunction directing the defendants to deliver to the plaintiff for destruction the infringed labels. The plaintiff also complained about passing of infringement of trade-mark. However, subsequently restricted its case to the extent of infringement of copyright. The trial Court initially dismissed the suit. Aggrieved thereby, the plaintiff filed First Appeal bearing No.734/2012 before this Court. This Court vide judgment and order dated 10.1.2014, set aside the decree of dismissal of suit and remitted the matter back for fresh trial. The plaintiff amended the plaint with regard to the averments about assignment of the copyright by the L.Rs. of the original author. After remand of the matter, the issues were recasted, opportunity was given to the parties to adduce the evidence. Thereafter, the District Judge-1 vide its judgment and decree dated 1.8.2014, decreed RCS No.3/2004, thereby restrained defendants Nos.1 and 2 from infringing the copyright of the plaintiff in artistic work in the labels Annexure A, A-1 and A-2 by reproducing the same by the labels Annexure E, F and J. The trial Court also directed the defendants Nos.1 and 2 to pay an amount of Rs.1,00,000/- (Rupees one lac) each by way of damages for infringement of the copyright of the plaintiff in the labels Annexure A, A-1, A-2, so also directed defendants 1 and 2 to destroy the labels Annexure E,F and J. The defendant No.1 has assailed the said judgment and decree in the present appeal.
2. Mr.V.J.Dixit, learned Senior counsel for the appellant/defendant No.1 during the course of his erudite arguments canvassed following submissions :
i) The plaintiff can not be said to be the owner of the copyright. The plaintiff has miserably failed to prove its ownership over the copyright. Even as per pleadings in para 9 of the plaint, the plaintiff came with the case that under the contract for service with Mr.V.L.Kale of M/s Shama Fine Arts, the label in question were printed for the first time on 18.5.1986. However, the said labels were already approved on 4.4.1986 by the Assistant Commissioner. The same is clear as per letter dated 4.4.1986 issued by the Assistant Commissioner (Exh.133). The said letter clearly states that the new labels for the country liquor business of the plaintiff are approved subject to certain conditions. When the said labels were already approved prior to the contract of service between the plaintiff and Mr.V.L.Kale, it can not be said that Mr.V.L.Kale, is the author of the said labels, inter-alia, plaintiff can not claim ownership over the said labels. The learned senior counsel further submits that even the contract of service between the plaintiff and Mr.V.L.Kale, is not proved. No document of contract is placed on record. The consideration amount allegedly paid is also not stated. Even the affidavit filed by Mr.V.L.Kale, is not helpful to the plaintiff. The said affidavit was marked Exh.130 subject to objection. Said Mr.V.L.Kale, is not available for cross-examination. The contents of the affidavit are not proved. Even the letters Exhs.120 and 121 of Mr.V.L.Kale, are not helpful to the plaintiff. There is no pleading in respect of the said documents. The said documents were sought to be proved by witness Mr.Thorath. He is not the author of the said documents. He only identified the signatures. The contents are not proved.
ii) Learned senior counsel further submits that if the pleadings and the evidence of witnesses are considered along with the provisions of Section 2(d)(iii) and Section 17 of the Copy Right Act, then it is clear that the plaintiff has failed to prove its case. The presumption stands rebutted. The author of the work is first owner of the copyright. In the present case, it is not at all proved that Mr.V.L.Kale, is the author of the said label as it would be clear that even as per the pleadings of the plaintiff and the evidence on record the contract for service was allegedly entered on 18.5.1986 and prior to the said date the label was already in the market. Who prepared the said label which was already in the market before the alleged contract of service between the plaintiff and Mr.V.L.Kale is not proved nor it is proved that the said labels which were already prior to the contract between the plaintiff and Mr.V.L.Kale were authored by Mr.V.L.Kale. In absence of the same, the plaintiff can not claim ownership and the presumption as laid down U/s 48 of the Copy Right Act will not be available to the plaintiff and the same stands rebutted.
iii) The learned senior counsel further submits that the alleged assignment is also not proved. The legal heirs of deceased Mr.V.L.Kale, are said to have assigned the said ownership vide Deed of Assignment. According to the learned senior counsel when the artistic work which was already in existence at least in April 1986, is not proved to have been prepared by Mr.V.L.Kale. The Deed of Assignment would not be of any help to the plaintiff. The said Deed of Assignment is also not proved. Even the witness examined to prove Deed of Assignment has admitted in the cross-examination that there is no evidence to prove that Mr.V.L.Kale, was employee of M/s Shama Fine Arts, so also categorically admitted that there is no evidence to prove that plaintiff paid an amount of Rs.25,000/- (Rupees twenty five thousand) to M/s Shama Fine Arts for preparation of label. This has been categorically admitted by Mrs.Shalaka Prashant Pathak i.e. daughter of Mr.V.L.Kale.
iv) Learned senior counsel further submits that even the plaintiff's label is approved under the Copy Right Act, by the competent authority. The learned senior counsel further submits that the firm M/s Shama Fine Arts is registered for the first time on 1.5.1987, as such it can not be assumed that M/s Shama Fine Arts was functioning in the year 1986, inter-alia, the presumption in respect of entries in the Register stands rebutted. The learned senior counsel relies on the judgment of the Apex Court in a case of 'Madan Mohan Singh and others Vs. Rajni Kant and another' reported in 2010 (9) SCC 209, to submit that a document may be admissible but whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of each case. Even if the entry is made in official record by the concerned official in discharge of official duty, it may have weight but still would require corroboration. In the present case, the plaintiff has miserably failed to prove that Mr.V.L.Kale, was the first author of the said label. It has also failed to prove the service of contract between the plaintiff and Mr.V.L.Kale, and/or Shama Fine Arts. It has also failed to prove the Deed of Assignment. Even the witness of plaintiff Avinash Vishnu Vesikar, admitted that Exh.93 was not prepared by the employees of the plaintiff factory. Mr.V.L.Kale, is not the employee of the plaintiff. This admission if read along with Section 2(d)(iii) read with Section 17 proviso [c] of the Copy Right Act, that plaintiff can not claim himself to be the first owner under the provisions of the said Act. Exh.94 is of no avail to the plaintiff as the presumption stands rebutted. In view of the above, the presumption U/s 48 stands rebutted.
v) According to the learned senior counsel even damages are not proved. The sales figure at Exh.102 do not reflect that the same is in respect of brand 'Bhingari Santra'. Even the figures therein show that every alternate year there was decrease/fluctuation in the sales of the plaintiff. The learned senior counsel further submits that the plaintiff has sought injunction only with regard to annexure A, but the District Judge has granted decree restraining the defendants from using annexures A, A-1 and A-2. The same is beyond the claim made by the plaintiff. The learned senior counsel submits that the labels can not be said to be identical. There are various distinctions between the said labels. According to the learned senior counsel, merely use of similar colours in the background can not be said to be infringement as it is not an artistic creation. Learned senior counsel relies on the judgment of the learned Single Judge of this Court in a case of 'Brihan Maharashtra Sugar Syndicate Vs. Meher Distilleries Pvt.Ltd and others' reported in 2006 (2) Bom.C.R.103. The judgment and decree is passed without application of mind and upon perverse appreciation of evidence. The same deserves to be set aside. The decree in RCS No.1/2000 is of no help to the plaintiff as the present defendant was not party to the said suit and the defendant in the said suit admitted the ownership. As such no weightage can be given to the judgment and decree in RCS No.1/2000.
3. Mr.Kane, learned counsel for the Respondent-plaintiff in his lucid style put forth following proposition :
i) The present plaintiff had also filed RCS No.2/2004 with regard to the same label i.e. Annexure A in the present suit and the said suit is subsequently decreed on 24.3.2015. The defendant has not filed any appeal against the said judgment and decree. The said suit was against the present defendant No.1. In the said suit, declaration was given by the Court that the plaintiff was the owner of the copyright in his artistic label 'Bhingari Santra' and the defendant is restrained from infringing the copyright of the plaintiff in the said artistic work. Though the said suit is decided subsequently, the same would operate as res-judicata as the defendant has not filed any appeal challenging the said judgment, as yet no notice has been received by the plaintiff of appeal in said case. The learned counsel relies on the judgment of the Apex Court in a case of 'Sri Gagaivinayagar Temple and another Vs. Meenakshi Ammal and others' (2015) 3 Supreme Court Cases 624, so also another judgment of the Apex Court in a case of 'Premier Tyres Limited Vs. Kerala State Road Transport Corporation' reported in 1993 Supp (2) Supreme Court Cases 146.
ii) Copy Right of the plaintiff in the label annexure A to the plaint has been upheld by the various Courts. Even if the judgment in RCS No.1/2004 is not inter party, the same can be relied upon in the present suit. For the said purpose learned counsel relies on the judgment of the Apex Court in a case of 'Tirumala Tirupati Devasthanams Vs. K.M.Krishnaiah' reported in (1998) 3 Supreme Court Cases 331. The judgment in RCS No.1/2004 and RCS No.2/2004 are judgments in rem and not in personam. A Judgment in rem settles the destiny of the res itself and binds all persons claiming an interest in the property inconsistent with the judgment even though pronounced in their absence. The learned counsel further submits that while deciding the question of infringement of copyright, it is not necessary that the defendant's work must be an exact reproduction of the plaintiff's work. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of 'Pidilite Industries Ltd. Vs. S.M.Associates and others' reported in 2004 (28) PTC 193 (Bom). The learned counsel submits that the defendant No.1 is claiming through defendant No.2. The defendant No.2 has not assailed the judgment of the trial Court, as such the same binds the plaintiff also. According to the learned counsel the marks are remembered by general impressions or by some significant details. Overall similarity is the touchstone. The broad and salient features must be considered for which the marks must not be placed side by side to find out differences in design. Overall similarity is sufficient. Learned counsel relies on the judgment of the learned Single Judge of this Court in a case of 'Deccan Bottling and Distilling Industries Pvt. Ltd., Aurangabad Vs. Brihan Maharashtra Sugar Syndicate Ltd., Nasik' reported in 2009 (2) Mh.L.J.302. Learned counsel submits that there is a greater chance of deception as country liquor is consumed mostly by the persons from lower strata of the society and most of them are illiterate. The learned counsel relies on unreported judgment dated 13.8.2007 in Appeal From Order No.38/2007 in a case of 'M/s 7 Stars Distilleries Vs. The Brihan Maharashtra Sugar Syndicate Ltd.'
iii) The learned counsel submits that only because the label adopted by the defendant No.1 is approved, the same does not defeat the plaintiff's right to maintain an action for infringement of copyright. The learned counsel relies on unreported judgment of this Court in a case of 'Tilaknagar Industries Ltd. Vs. Somarasa Distilleries and another' dated 4.12.2007 in Notice of Motion No.1665 of 2007.
iv) According to learned counsel the pleadings in para 9 of the plaint are misconstrued by the defendants. Though para 9 is not happily worded, the said para 9 does not mean that the contract of service with Mr.V.L.Kale, and Shama Fine Arts was for the first time on or about 18.5.1986. Preparation of labels, submitting it for approval is a process. Mr.V.L.Kale, has not denied that he has prepared the label. In his affidavit Exh.130, he clearly states that since 1979 M/s Shama Fine Arts has been designing and printing several artistic and distinctive labels for and on behalf of plaintiff and in the year 1986, plaintiff requested M/s Shama Fine Arts for its country liquor new label, interalia, containing expression 'Deshi Daru Bhingari Santra' with the details as given in the affidavit. The letter dated 4.4.1986 (Exh.133) itself shows that pursuant to the said letter the final printed copy of each label was to be sent to the office of the Assistant Commissioner. The defendants can not take any advantage of the same. It is proved that since 1986, the plaintiff is using the said label annexure A to the plaint. The plaintiff is the owner of the said copyright. Exh.94 would testify the said fact. It is clearly stated in Exh.94 that the present plaintiff is the owner of the copyright of the work of the said label. It also specifies that the author of the same is Mr.V.L.Kale, M/s Shama Fine Arts and the same is in the year 1986. As per Section 48 of the Copy Right Act, the presumption is given to the said certificate and the contents of the same. The defendants have not been in a position to rebut the said presumption. No contra evidence has been led by the defendants. According to the learned counsel, the trial Court has considered the various similarities. The label of the defendant has similar picture of glass in golden yellow colour tappering towards the bottom and top and bulging in the middle. It is having a similar background of red colour like background in the label of the plaintiff. It has also black border like the border of the label of the plaintiff, therefore, it has deceptive similarity. The learned counsel submits that if certificate granted by the Registrar in favour of defendant is perused, the said certificate is granted subject to the objection which would be raised by any other person and the liability to meet such objection is cast on the person claiming copyright. The learned counsel submits that according to Section 51 of the Copy Right Act, if the Act is not permitted by the owner of the copyright then also it is violation.
v) Learned counsel submits that in cases of infringement of copyright even punitive damages are to be awarded. Learned counsel relies on the judgment of the learned Single Judge of the Delhi High Court in a case of 'Aktiebolaget Volvo and Others Vs. Mr.V.N.Prasad and another' reported in (2006) 133 Company Case 655 (Delhi), so also judgment of Delhi High Court in a case of 'Adobe Systems, Inc.and another Vs. Mr.P.Bhoominathan and another' reported in 2009 (39) PTC 658 (Delhi). The learned counsel also relies on the judgment in suit No.879/2013 delivered by the learned Single Judge of this Court dated 27.3.2014 in case of 'Ajanta Pharma Limited Vs. Neuro Life Drugs'.
4. with the assistance of the learned counsel, I have gone through the judgments, so also the Record and Proceedings. The suit though initially was filed claiming infringement of copyright, trademark and passing off subsequently, the suit is restricted to the extent of infringement of copyright of label at annexure A.
5. The term property includes copyright. The right to the same is a right in rem. Coming to the submission of the learned counsel for the plaintiff Mr.Kane, that the subsequent judgment and decree passed in copyright suit No.2/2004 dated 24.3.2015 would operate as res-judicata is concerned, the same can not be accepted. In order to decide a question whether the judgment in another suit operates as res-judicata it is necessary to examine the question with reference to :
a) The form or competence of the Court;
b) The party and the representatives;
c) Matters in issue;
d) Matters which ought to have been made ground for defence or attack in the former suit;
e) the final decision;
6. It is settled proposition that rejudicata is a mixed question of fact and law.
It has to be specifically pleaded and the party relying on the principle of res-judicata should place before the Court all material particulars which would be sufficient to give a finding whether the particular case is barred by principle of res-judicata.
7. The plaintiff has not placed on record the pleadings of RCS No.2/2004 and has only filed the photo copy of the judgment and decree in the said suit. For applying the principle of res-judicata the pleadings in the earlier suit would be of paramount importance. Unless pleadings of the earlier suit are filed in the present matter, it would not be possible to dilate on the aspect of res-judicata. In the present proceedings also the Respondent/plaintiff has nowhere pleaded about res-judicata and only at the time of final arguments raised plea of res-judicata. The plaintiff wants this Court to invoke principle of res-judicata merely on the basis of photo copy of the judgment and decree in the earlier suit decided subsequently. The same would not be permissible, more particularly, in absence of the pleadings of the earlier suit.
8. There is another facet to the case. Mr.Dixit, learned senior counsel states that steps are being taken to assail the judgment delivered in RCS No.2/2004.
9. However, in absence of the pleadings, the issue of res-judicata can not be considered.
10. There can not be any dispute with the proposition that even if the defendant is not a party in a earlier suit with regard to the ownership of copyright in a label, the judgment would be relevant fact. Of course, it can not be on the same pedestal so as to apply the principle of res-judicata. However, the said judgment can be said to be a relevant fact within the meaning of Section 42 and 43 of the Indian Evidence Act.
11. The defendant has disputed the ownership of the copyright of the plaintiff over the label annexure A. Exh.94 is the extract of the register of copyright, wherein it specifically states about the interest of the applicant in the copyright work as a 'owner'. The title of the work 'Deshi Daru Bhingari' The description of the work as artistic, the author of the said artistic work as Mr.V.L.Kale and the year 1986 as the year of the first publication. The same is accompanied with the copy of the artistic work. Section 48 of the Copy Right Act lays down that the Register of Copy Right shall be prima facie evidence of the particulars entered therein and the documents purporting to be copies of any entries therein, or extracts therefrom certified by the Registrar of Copyrights and sealed with the seal of the Copyright Office shall be admissible in evidence in all Courts without further proof or production of the original. Reading Section 48, it is manifest that the said extract of Register of Copyright is a prima facie evidence of the particulars entered therein and the same is admissible in evidence. The defendants have never challenged the particulars of the entries in Exh.94. The plaintiff along with extract of copyright Exh.94 have also filed on record the copy of the affidavit of the original author of the said label Mr.V.L.Kale i.e. at Exh.130. Said V.L.Kale, subsequently died. Even a Deed of Assignment (Exh.158) executed by the legal heirs of V.L.Kale, in favour of plaintiff is produced on record detailing the fact of assignment of the ownership of the copyright of the said work. The said Deed of Assignment specifically states that V.L.Kale, designed and prepared the said original artistic work during and under the contract of service for and on behalf of assignee for a valuable consideration paid by the assignee and the parties bonafidely believed that the assignee is the owner of the copyright in the said artistic work. It states that though late V.L.Kale, for himself and on behalf of said M/s Shama Fine Art, had signed and executed various writings declaring that copyright and all other rights in the said artistic work as belonging to the assignee. However, no formal document was executed between the concerned parties recording the said fact the assignors have agreed to execute the said assignment in favour of the assignee and even the said rights were assigned. The said Deed of Assignment is proved by the constituted Attorney of the Assignor, who is the daughter of the Assignor. Para 9 in the plaint will have be read in its totality. It is stated in para 9 that in the year 1986, plaintiff requested one M/s Shama Fine Arts to design for its country liquor having orange flavour a label, inter-alia, containing the expression 'Deshi Daru Bhingari Santra' with other descriptive matters. Accordingly, Mr.V.L.Kale of M/s Shama Fine Arts prepared the art of the said label, got it approved from the plaintiff and printed the same for the plaintiff for the first time on or about 18.5.1986 under contract of service for the plaintiff and issued certificate to that effect. The approval, preparation, printing would require a process and can not be in one day. Much hue and cry is made by the defendant that on 8.3.1986 the said label was submitted for approval and the same was approved on 4.4.1986 and there is no label prepared on 18.5.1986. The same may not be of any avail to the defendant for the following reasons :
(a) Exh.94 the contents of the Register are not assailed/challenged by the defendants or any other party;
(b) The defendants have not come out with a case that it is not V.L.Kale, who is the author of artistic work but it is some other person. No such other person is named by the defendants. The oral evidence on record suggesting the original author to be V.L.Kale. The Deed of Assignment by L.Rs. of V.L.Kale in favour of the plaintiff is at Exh.130. The certificates issued by V.L.Kale Exh.120 and 121 coupled with this evidence, the presumption given U/s 48 of the Copy Right Act. All these facts would unequivocally go to establish that it was V.L.Kale, who was the original author of the said work. The District Court has considered the fact that affidavit filed by V.L.Kale, who has subsequently expired on 8.11.2006 can be made admissible in evidence under clause 7 of Section 32 of the Indian Evidence Act. In fact, the said affidavit is made by him against his own interest and even the legal representatives of V.L.Kale, have deposed about the same. The plaintiff as such proves himself to be the owner of the copyright in annexure A by virtue of Section 17 of the Copy Right Act and even by virtue of Section 18 of the said Act. As the Deed of Assignment is also executed in his favour, the defendants have failed to rebut the said evidence led by the plaintiff and presumption attributed to Exh.94. The defendants even remotely have not proved that the said label is prepared by some other person. Only a vague denial is made by the defendants which is not sufficient to rebut the said presumption.
12. The other aspect which is required to be considered is about the similarity in the label annexure A and the labels being used by the defendants. It is trite that for infringement of copyright an exact reproduction or copy is not necessary. What is essential to be considered is whether there is a reproduction of substantial part of the said label. The test of infringement would be as to whether there is an impression that subsequent work appears to be a copy of the original. It is also settled proposition that minor variations would not take away the case from the ambit of infringement of copyright. A very close microscopic examination for ascertaining the alleged deceptive similarity need not be adopted. The case will have to be judged on the basis as to whether there is a substantial infringement or substantial similarities. The District Court has also observed various discrepancies. I have also gone through the labels annexure A of the plaintiff and the label used by the defendant. They appear to be deceptively and substantially similar. The District Court has properly considered the similarities between the two i.e. label of the defendant has similar picture of glass in golden yellow colour, tappering towards bottom and top and bulging in the middle. It is having similar background of red colour like background in the label of plaintiff. It also has black border like the border of the label of the plaintiff. The label is deceptively similar to that of the plaintiff. The District Court has rightly rejected the contention of the plaintiff about the copyright in the words. However, as far as artistic work
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is concerned, there is deceptive similarity. The District Judge has rightly considered the said aspect. 13. The plaintiff is owner of copyright is proved by preponderance. The subsequent certificate in favour of the defendant is subject to objection which would be raised by any other person. As per Section 51 of the Copy Right Act, if the Act is not permitted by the owner, the same amounts to infringement. In view of that the Certificate granted by the Registrar in favour of the defendant would be of no avail. 14. As far as damages are concerned, the plaintiff has placed on record the accounts of Akola Region, which shows decline in the sales. In cases of such nature, punitive damages are required to be awarded. Award of damages of Rs.1,00,000/- (Rupees one lac) is reasonable and proper. 15. It is manifest that the plaintiff had sought injunction only with regard to the label annexure A to the plaint and not annexure A-1 and A-2. However, the District Judge has also clamped injunction with regard to labels annexure A-1 and A-2. The same was beyond the purview of the suit itself. The order to the extent of annexures A-1 and A-2 can not be sustained. The judgment and decree to the extent of injunction being clamped against the defendant with regard to annexures A-1 and A-2 will have to be set aside. 16. In the result, I pass the following order: i) The judgment and decree of the trial Court to the extent of perpetually restraining defendant Nos.1 and 2, their servants or persons claiming through them from infringing the copyright of the artistic work in the labels annexure A and by reproducing the same with labels Exh.E and F is maintained and upheld. The judgment and decree of the trial Court granting injunction against defendant Nos.1 and 2 from infringing copyright of the plaintiff in the artistic work in labels annexures A-1 and A-2 is set aside. The decree of damages for Rs.1,00,000/- (Rupees one lac) each against defendant Nos.1 and 2 for infringement of annexure A is upheld and maintained ii) The defendant Nos.1 and 2 shall destroy the labels Exhs.E and F to the plaint. The samples of label annexure A of the plaintiff and annexures E and F of the defendants shall form part of the decree. iii) The Civil Applications also stand disposed of. iv) Decree be drawn accordingly. However, there shall be no order as to costs. v) At this stage, the learned counsel for the appellant seeks continuation of interim orders for a period of eight (8) weeks. The learned counsel for the Respondents opposes the said request. vi) Considering the fact that, the interim orders were in operation, the said interim orders are continued for further period of six (6) weeks from today. Needless to state on lapse of six (6) weeks, the said protection granted shall come to an end.