Delhi District Court
State vs . Naveen Kumar on 9 June, 2009
IN THE COURT OF SH. DIG VINAY SINGH, ACMM03 (IPR), ROHINI, DELHI
FIR NO.998/05
PS NANGLOI/IPR
U/S. 63,65 OF COPYRIGHT ACT, 1957 & SECTION 103 & 104 OF
TRADEMARK ACT, 1999
STATE VS. NAVEEN KUMAR
ORDER ON CHARGE
09.6.2009
Pr. Ld. APP for the State Mr. Pradeep Gangwar.
Sole accused Naveen Kumar is present on bail.
Counsel Mr. Kartikay Sharma, Adv. for accused is present.
1.Ld. counsel for the accused concedes to framing of charges against the accused. The offences for which chargesheet has been filed against the accused are section 63 & 65 of the Copyright Act, 1957 as also section 420 of IPC.
2. Brief facts of the case are that on a complaint given by Indian Oil Corporation Ltd., dated 06.10.2005, through Mr. Rupesh Singh Kushwaha regarding infringement and selling of spurious oil under the brand name 'Servo' by unscrupulous persons, a raiding party was constituted. The complainant specifically alleged that trademark 'Servo' is used by the complainant company for selling and marketing quality lubricants and oil products. The raiding party reached Khasra No.100/12, Swarn Park, Mundka, Delhi, after confirming the infringement in the said factory since the complainant named that certain persons in the said area were so indulged in infringement. Accused was physically present there and on checking factory, 5 drums with tradename 'Servo' filled up with oil/lubricant; 30 drums printed with tradename 'Servo' which were empty; 15 old empty drums; 6 old drums containing low quality engine oil and around 60 small and big seals with impression Indian Oil, Castrol, HP and BP were recovered. The Order on charge in State Vs. Naveen Kumar, FIR no.998/05 Page no. 1 of 5 dtd.09.6.2009/k case property was sealed with the seal of SK and was taken into police possession and on completion of investigation, chargesheet u/s.63,65 of Copyright Act, 1957 and u/s. 420 of IPC was filed.
3. My Ld. Predecessor Court on 08.12.2007 took cognizance of the said offences and the accused was summoned. Although, Ld. Counsel for the accused has conceded to framing of charges, but it is noticed in the present matter that there is no one who has been deceived, fraudulently and dishonestly, to purchase such substandard oil/lubricant. Deception is a necessary ingredient of the offence of cheating. In absence of any such inducement which was fraudulent or dishonest, necessary ingredients of section 420 of IPC are not made out. It may be mentioned here that none of the raiding party members were so induced by the accused, rather the raiding party raided the premises and recovered alleged articles. Therefore, in absence of ingredients of cheating, no charges u/s. 420 of IPC can be framed.
4. The facts as above discloses offence under the Trademark Act, 1999. Section 102 of the Trademark Act, 1999 provides that a person shall be deemed to falsify a trademark who either without the assent of the proprietor of the trademark, makes that trademark or a deceptively similar trademark. It also provides that if a person falsify any genuine trademark by alteration, addition, defacement etc., it shall be falsifying trademark. Subsection (2) of section 102 of Trademark Act, 1999 provides that a person shall be deemed to falsely apply a trademark on a good, if that person without the assent of the proprietor of the trademark applies such trademark or a deceptively similar trademark to the goods or on the packages containing goods. Using any package bearing identical trademark or deceptively similar trademark for the purposes of packing, filling or wrapping any goods other than genuine goods also falls within Order on charge in State Vs. Naveen Kumar, FIR no.998/05 Page no. 2 of 5 dtd.09.6.2009/k the definition of falsifying a trademark under subsection (2) of section 102 of the Trademark Act, 1999. Section 103 of the Trademark Act provides punishment for the same.
5. Section 104 of the Trademark Act 1999, so far as relevant for our purposes, provides, punishment where a person has in his possession for sale any goods or things to which any false trademark or false trade description is applied.
6. In the present case, when the accused was found in possession of the above said articles with identical trademark/deceptively similar trademark, section 103 & 104 of the Trademark Act, 1999, gets attracted. There is a registered trademark in favour of Indian Oil Corporation Ltd. The registration of the trademark is valid upto 09.4.2009 under Certificate No.496265. Therefore, the proper provisions for which the accused should have been booked were section 103 & 104 of Trademark Act, 1999 and primafacie there are sufficient material to proceed against the accused for the said offences.
7. Let us examine whether the offences under Copyright Act, 1957, are made out against the accused or not. Section 13 of the Copyright Act, 1957 provides that a copyright shall subsist throughout India in original literary, dramatic, musical and artistic work. Copyright also subsist in cinematograph films and sound recordings. Admittedly, the goods which were recovered from the accused are neither literary, nor dramatic, musical, cinematograph film or sound recording. Therefore, the only work in which copyright could be claimed by the complainant regarding recovered goods is the artistic work on the goods. Perusal of complaint dated 06.10.2005 would reveal that in the complaint, the complainant has claimed copyright in the artistic work. The complainant in paragraph2 has mentioned that the activities of unscrupulous Order on charge in State Vs. Naveen Kumar, FIR no.998/05 Page no. 3 of 5 dtd.09.6.2009/k persons in printing/painting the containers containing oil bearing 'Servo' trademark, amounts to cheating and which is punishable under the Copyright Act, 1957.
8. Law is well settled that the complaint of a complainant need not be exhaustive and it is for the investigating agency to see as to what offences are attracted. Perusal of file reveals that the complainant has designed a logo inside which the tradename 'Servo' is mentioned. The said logo containing the tradename 'Servo' is a drawing. The complainant in his complaint claims that the complainant is prior user of the same.
9. Section 2(c) of the Copyright Act, 1957, defines artistic work as meaning, a painting and also a drawing which includes a diagram, an engraving or a photograph. It also provides that artistic work in painting and drawing as above would exist whether or not any such work possesses artistic quality. The said definition of artistic work would include the drawing of logo by Indian Oil Corporation Ltd., wherein tradename 'Servo' is written. Therefore, copyright of complainant subsist in the said drawing which is an artistic work and, therefore, when the accused allegedly was found in possession of such articles with infringed artistic work and when these goods were meant for sale, offence of infringement is made out.
10. Section 14 of the Copyright Act, 1957, further provides that the reproduction of a work for which copyright subsist and issuance of such work to the public shall be exclusive right of the copyright holder.
11. Section 51 of the Copyright Act, 1957, provides that when such a reproduction is made by a person without any authority or licence of the copyright holder, the copyright shall be deemed to be infringed. When the accused made such reproduction of the artistic work of the complainant, it amounts to infringement as defined in Order on charge in State Vs. Naveen Kumar, FIR no.998/05 Page no. 4 of 5 dtd.09.6.2009/k section 51 of the Copyright Act, 1957, and is punishable u/s.63 of the Copyright Act, 1957. Accordingly, primafacie there are sufficient material on record to frame charges u/s.63 of the Copyright Act, 1957, also.
12. The last section invoked by the investigating agency is section 65 of the Copyright Act, 1957. Section 65 of Copyright Act, 1957, makes punishable when a person is found in possession of duplicating equipment which is used or which intended to be used for infringement. Word 'Duplicating equipment' and 'Plate' are defined in section 2(hh) and 2(t) respectively of the Copyright Act, 1957. 'Duplicating equipment' is defined as any mechanical contrivance or device used or intended to be used for making copies. Word 'Plate' is defined as any plate, stone, block, mould, matrix, transfer negative, duplicating equipment or other device used or intended to be used for printing or reproduction of copies of any work. What was recovered from the accused in this case is 60 small and big seals of various companies which include Indian Oil Corporation Ltd., Castol, HP & BP. These articles would fall within the definition of plate/duplicating equipment and, therefore, primafacie against the accused, there are sufficient material to frame charges u/s.65 of the Copyright Act, 1957 also.
13. Let charges be framed against accused for offences u/s.63 & 65 of the Copyright Act, 1957, & u/s.103 & 104 of Trademark Act, 1999.
14. Charges framed separately, to which accused plead not guilty.
15. Put up for PE on 17.12.2009.
ANNOUNCED IN OPEN ( DIG VINAY SINGH )
COURT ON 09.6.2009 ACMM03 (IPR)
ROHINI, DELHI/09.6.2009
Order on charge in State Vs. Naveen Kumar, FIR no.998/05 Page no. 5 of 5 dtd.09.6.2009/k