Delhi High Court
Camlin Private Limited vs National Pencil Industries on 26 September, 2001
Equivalent citations: 96(2002)DLT8
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Devinder Gupta, J.
1. This appeal has been preferred against the composit order passed on 7.11.1985 by the learned Single Judge rejecting the plaint on the ground that the plaint do not disclose cause of action against the defendant and simultaneously dismissing the application filed by plaintiff/appellant under Order 39 Rules 1 and 2 CPC seeking temporary injunction against the defendant.
2. On 17.4.1985 plaintiff filed suit against the defendant claiming the following reliefs:-
(i) An order for permanent injunction restraining the defendant through its partners or proprietor as the case may be, their servants, agents, from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in ELORA and CAPTAIN pencils and cartons or any other pencil and/or carton as are identical to and/or deceptively similar with the plaintiff's FLORA pencil and the carton pertaining thereto respectively and/or from reproducing the floral design of the plaintiff on CAPTAIN pencil cartons on any other pencil carton in respect of their colour combination, layout, get up and arrangement of features and/or from reproducing the plaintiff's characteristic and artistic logo script of the trade mark FLORA by the adoption of similar logo script in respect of trade mark ELORA thereby violating the plaintiff's copyright in the FLORA pencil and carton and in the logo script of the trade mark FLORA.
(ii) An order for permanent injunction restraining the defendant through its partners or proprietors as the case may be, their servants and agents from manufacturing, selling, offering for sale, directly or indirectly dealing in pencils under the trade mark ELORA or any other trade mark identical to and/or deceptively similar with the plaintiff's trade mark FLORA amounting to infringement of registered trade mark No. 3245148.
(iii) An order for permanent injunction restraining the defendant through its partners or the proprietor as the case may be, their servants and agents from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in ELORA and CAPTAIN pencils, cartons pertaining thereto and the trade mark ELORA and/or from reproducing plaintiff's floral design on CAPTAIN pencil carton or any other pencil carton and/or from doing any other thing as is likely to amount to passing off of the defendant's goods or business as the goods or business of the plaintiff.
(iv) For an order for delivery up of the impugned material including the defendant's FLORA and CAPTAIN pencils and their cartons, blocks, dies, wrapping and packing materials etc. for the purpose of destruction and/or eraser.
(v) An order for rendition of account of profits illegally earned by the defendant and a decree be passed in favor of the plaintiff and against the defendant for the sum of the amount ascertained.
(vi) For costs in the proceedings.
(vii) Any further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
3. The aforementioned reliefs were claimed by the plaintiff, inter alia, alleging that amongst the favor products of the plaintiff are Camlin FLORA pencils, which are highly distinctive and are manufactures and sold in distinctive and artistic cartons since 1977. In para 4 of the plaint, plaintiff described the distinctive features of the FLORA pencils and same were duly explained in paragraphs 5, 6 and 7 of the plaint. In para 8 of the plaintiff alleged that it was the owner of copyright in the floral design that appear on Camlin FLORA and its cartons as it constitutes an original artistic work conferring upon the plaintiff the exclusive right to use and reproduction thereof in any material form. It was also alleged that the plaintiff has also got copyright in the artistic logo script of the trade mark FLORA as the same is an original artistic work and the plaintiff has the exclusive right to the use of the said logo script. Use of such or any identical or deceptively similar logo script by any other trader would infringe the plaintiff's copyright therein. Plaintiff also alleged in para 9 that it was also the registered proprietor of its trade mark Camlin FLORA under registration No. 3245148 dated 13th April, 1977 and the said registration was valid, subsisting and in full legal force. Plaintiff also alleged that it has built up a large and extensive sale of its Camlin FLORA pencils and has also spend huge amount of money on the publicity of such pencils. In paragraph 12 onwards the plaintiff alleged deliberate copying of the distinctive features of the plaintiff's pencils including colour combination, get up, layout and arrangement of the features. Plaintiff alleged that S.No. 839/84 had been filed against the defendant earlier in which the defendant had been restrained from using impugned carton during the pendency of the suit. After being so restrained the defendant had come up with the imitation of the plaintiff's Camlin FLORA pencil for which the plaintiff alleged that cause of action arose in October, 1984 when the plaintiff learnt for the first time from the defendant's letter dated 30.10.1984 of the adoption and sue of the infringed pencils, the cartons pertaining thereto and the trade mark ELORA by the defendant. It is stated that when despite reply of the plaintiff the defendant failed to desist and restrain itself from manufacturing and sale of the ELORA and CAPTAIN pencils and cartons pertaining thereto, cause of action had arisen for filing of the suit. Along with the suit the plaintiff also filed an application for an order of temporary injunction being I.A. 2209/85.
4. After service the defendant put in appearance and filed written statement to which replication was also filed by the plaintiff. It appears that when application under Order 39 Rules 1 and 2 CPC came up for consideration, after hearing arguments, learned Single Judge proceeded not only to dismiss the application but also proceeded to reject the plaint.
5. Learned Single Judge after setting out the facts of the case in detail made observations that a mechanically reproduced printed carton is not capable of being subject matter of the copyright. He observed that the plaintiff had produced in court only a mechanically reproduced printed carton. From that the learned Single Judge observed that "I find that no copyright does not subsist therein". Learned Single Judge further observed that:-
"In my view, copyright does not subsist therein for the reason that it is impossible to determine who is the "author" of a mechanically reproduced printed carton. Copyright is conferred only upon "authors" or those who are natural persons from whom the work has originated, or the authors may be legal persons to whom copyright has been assigned in accordance with law, by the authors from whom the work had originated."
6. After making the aforementioned observations learned Single Judge proceeded to further hold that the plaintiff cannot claim any copyright in any carton that has been mechanically reproduced by a printing process as the work can not be said to have originated from the "author". The reason for holding so appears to be the next observation made in the impugned order that a machine cannot be "author" of an artistic work, nor can it have copyright therein. After holding so the learned Single Judge proceeded to further observe that since there is no copyrightable subject matter in mechanically produced printed cartons, the only right being claimed in the suit, the suit for infringement of the copyright is not made out. Learned Single Judge also found out that as regards infringement of plaintiff's trade mark Camlin FLORA, he was of the view that words NATIONAL ELORA is no view of the matter can be said to infringe the trade mark CAMLIN FLORA, nor can the words NATIONAL ELORA be passed off as the words CAMLIN FLORA. Consequently learned Single Judge held in his view suit for infringement of the alleged copyright or alleged infringement of the trade mark or for the alleged passing off cannot be maintained and use of the word NATIONAL ELORA on the cartons of the defendants do not give rise to any cause of action to the plaintiff as they do not infringe the alleged trade mark, CAMLIN FLORA. Thereafter he proceeded not only to dismiss the application under Order 39 Rules 1 and 2 CPC but also rejected the plaint and observed:-
"In view of my findings, not only the plaintiffs are not entitled to the injunction which they are not entitled to maintain the suit as brought and framed. The suit as filed, and the documents filed Along with the plaint, do not disclose a cause of action against the defendants and the plaint is liable to be rejected. The injunction prayed for is refused and the plaint is rejected under provisions of Order 7 Rule 11 of the Code of Civil Procedure, as the same discloses no cause of action."
7. Appeal was admitted for hearing on 3rd February, 1986 and on the application filed under Order 39 Rules 1 and 2 CPC notice was issued to the defendant/respondent. After the defendant/respondent appeared the parties were heard and by order dated 25.7.1986 an order was passed putting restraint on the defendant/respondent to the extent as incorporated in the said order, which interim order is still in operation.
8. On appeal being called for hearing nobody has put in appearance on behalf of the respondent. We have heard learned counsel for the appellant and been taken through the entire record.
9. We need not again reproduce the basis on which the plaintiff approached the Court. We have already extracted salient features of the plaint aforementioned. The plaintiff approached the court alleging infringement of copyright, infringement of trade mark and passing off. The conclusion of the learned Single Judge that the plaint do not disclose cause of action appears basically due to erroneous view he held that a mechanically reproduced printed carton is not capable of being the subject matter of the copyright. He thus proceeded to hold that the plaintiff cannot claim any copyright in any carton that has been mechanically reproduced by a printing process, which view cannot be said to be a correct view which can be taken on a meaningful reading of various provisions of the Copyright Act, 1957.
10. Copyright subsists only in an original literary work. But it is not necessary that the work should be the expression of the original or inventive thought, for Copyright Act are not concerned with the originality of ideas, but with the expression of thought, and in the case of a literary work, with the expression of thought in print or writing. Originality for the purpose of copyright law relates to the expression of thought, but such expression need not be original or novel. The essential requirement is that the work must not be copied from another work but must originate from the author. Work has been defined in Clause (Y) of Section 2 to mean any of the following works, namely:-
(i) a literary, dramatic, musical or artistic work;
(ii) a cinematograph film;
(iii) a [sound recording].
11. Artistic work has been defined in Clause (c) of Section 2 to mean:-
(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
(iii) any other work of artistic craftsmanship;
12. Copyright consists of a bundle of rights. Section 14 of the Act defines various copyrights for the purposes of the Act.
13. Section 14 of the Act as it stands today was substituted by Copyright (Amendment) Act 38 of 1994, which amendment came into force with effect from 10.5.1995. The case is governed prior to amendment in relation to an artistic work reproduction of the work in any material form was one of the rights recognised as the exclusive copyright under Section 14 of the Act as it stood when the learned Single Judge passed the impugned order. Therofre, the premise on which the learned Single Judge proceeded to reject the plaint was erroneous in law. The view held by learned Single Judge that a mechanically reproduced carton by printing process was not capable of being subject matter of copyright was not correct, which was the sole basis in having come to the conclusion that the plaint do not disclose the cause of action. Learned Single Judge also appears to have confused the issue about maintainability of the suit with that of the plaint not disclosing the cause of action. The question whether the plaint discloses cause of action or not has to be decided on a bare reading of the plaint. It is not the same thing as maintainability of the suit. The plaint if read as a whole does disclose cause of action against the defendant which as per the averments made in the plaint does not allege that it was the defendant who was infringing the plaintiff's copyright and trade mark and that there was passing off. Consequently, we are of the view that the impugned order in so far as it ordered rejection of the plaint is liable to be set aside.
14. The appeal accordingly is allowed. The impugned order is set aside. The suit is restored to its original number. Learned Single Judge will now proceed to dispose of the suit in accordance with law.
15. As regards the prayer which the plaintiff made in his application (I.A. 2209/85) for temporary injunction we are of the view that the order which was passed during the pendency of the appeal on 25.7.1986 shall continue to remain in operation during the pendency of the suit and thus the application (I.A. 2209/85) stand disposed of in terms of the said order. Ordered accordingly.
16. Parties are directed to appear before the learned Single Judge on 3.112.2001 on which date the suit record will be made available to the learned Single Judge to enable him to proceed with the trial of the suit in accordance with law.