Copyright Board
Jay Engineering Works Ltd. vs Chinar Trust And Anr. on 22 August, 2005
Equivalent citations: 2005(31)PTC639(CB)
JUDGMENT
Brij Kishore Sharma, Chairman
1. This is an application under Section 50 of the Copyright Act, 1957 seeking expunction of an artistic work "Usha Shriram" (device and logo) bearing registration No. A-49316/88. The artistic work was registered in the name of Usha Intercontinental (Prop. General Sales Ltd.) in the year 1988. Late in the year 1993 the ownership in the artistic work was transferred to Chinar Trust. But in the year 2000 Chinar Trust transferred the ownership back to Usha Intercontinental.
2. The applicant named Chinar Trust as the Respondent in the application filed in 2003. On August, 22, 2005 just before the arguments were to commence the applicant moved an application praying for addition of Usha Intercontinental as an additional respondent. The advocate for the Respondent stated that he has no objection to the application being accepted and Usha Intercontinental being added. Accordingly the application was allowed and the Chiner Trust was made Respondent No. 1 and Usha Intercontinental as Respondent No. 2.
3. The first ground taken by the applicant is that the entry lacks originality. The reason given is that the applicant holds valid Copyright and trademark registrations for the USHA logo prior to the impugned registration. It is stated in Para 1 of the application" ...'the Respondent adopted the impugned artistic work with full knowledge and access to the petitioner's (sic) USHA logo, and consequently the said entry could not be said to have originated with the Respondent...thereby lacking in originality.... The applicant has been using USHA (Single block) and USHA (four blocks separated by narrow white gaps between the letters) as trade marks since 1979 (Para 4). Besides the "Usha logo" the applicant has being using the trade marks 'Shriram' and a 'petal device'. (Para 8). It is claimed that the petals device is original work entitled to Copyright protection (Para 10). The three logos-Single block, 4 Block and 5 block are reproduced below:
Copyright Registration No. : A-5349/70 Copyright Registration No.: A-25166/79 Copyright Registration No. : A-49316/88
4. The applicant and both the respondents have a common ancestor (the term is being used in a general sense). They are legal persons who trace their origin to their founder Late Sir Shriram, well-known industrialist who is also the founder of some of the premier educational institutions of Delhi. This is reflected in the application where it is stated in Para 11 "The Petitioner and the Respondent have been associated in business and commonly known as Usha - Shriram Group of Companies." It is further stated in para 12 that both the parties have been marketing their products under the marks usha and Usha Shriram and acted together and jointly along with other group companies to restrain other parties from using 'Usha'.
5. In Para 13 it is stated that "all the member companies of the group are united in protecting the aforesaid mark and other common shared rights of the group against the world." It is also averred that" the group has agreed upon certain self-imposed demarcations within the group itself so as to define their respective areas of monopoly and thus prevent any confusion as to trade origin."
6. It is alleged that the applicant came to know in the course of the proceedings before the High Court of Kolkata in Suit No. CS 70 of 2002 that the respondent has registered the impugned artistic work in its name. The impugned work is hereinafter referred as the five block Usha Shriram Logo or five block logo or five block artistic work.
7. The applicant has given various grounds for expunction in the application, which in short are lack of originality, suppression of material facts and infringement of the provisions of the Copyright Act and Rules.
8. The respondent No. 1 in its written statement at the very outset averred that the Shriram Group also referred to as the Usha Group has used the trademark Usha in various formats. The five block artistic work is distinctive by itself and has been so recongnized during the past 20 years. The originality of the Copyright work lies in the layout and the arrangement is distinctive and sufficiently original and adequately artistic.
9. It was stated that the applicant has concealed true and material facts and that they were aware of the existence of the five block logo for over a decade. Applicant is also alleged to have concealed the fact that the applicant was purchasing and selling Usha Shriram appliances including ventilating fans marketed or manufactured by Respondent No. 1.
10. The Usha Group has 'coexistence arrangement' to restrain outsiders from using USHA, Usha Shriram and Shriram registration, which marks were granted unopposed among Usha group members.
11. The five block logo (the impugned artistic work) originated in 1984 and was registered in 1988. The combination of the integer in a distinctive manner designed by an artist enabled it to be registered as an artistic work. The degree of originality is sufficient for the purpose of copyright protection.
12. Respondent No. 1 confined itself to sale and manufacture of specific articles. The other Usha Group entities do not apply Usha trade marks to these items. The Respondent later extended its activities to a large number of consumer items e.g. Kitchen and home appliances. The applicants have through their own outlets, sold and offered for sale the Respondent's products particularly in the Eastern part of India. The artistic work was prepared by an artist on behalf of Usha Intercontinental, which is exporting a large variety of Usha Shriram products as export house of Usha Shriram group.
13. Respondent No. 1 maintained that for the purposes of these proceedings it is immaterial whether the present owner is Chinar Trust or Usha Intercontinental.
14. Respondent No. 1 has enumerated and exhibited 5 trademark registrations of Usha and 2 of Usha Shriram in its name. Some of these have been registered in Iran, Nepal, Vietnam and Srilanka.
15. The Respondent claims that the applicant had full knowledge about all these registrations in favour of the Respondent. The applicant, it is alleged, is claiming exclusive rights with a view to destroy the group mark status. The object is to make financial gains by selling trademark rights to others.
16. It wag also stated that it was a falsehood to say that the applicant came to know of the artistic work only recently. It was used for decades on all the packages, containers arid receptacles containing the products of Respondent No. 1. The products are widely sold in India and abroad. At no point of time the applicant objected to the use of the five block logo.
17. In the rejoinder filed by the applicant it was again stated (in Para 2) that within the Usha Group, member companies have agreed upon certain self imposed demarcations. In para 2 (b) of the application it was stated "The petitioner has never objected to the respondents use of the USHA SHRIRAM five block logo in the manner aforesaid for the reason that it was understood as no more than an indication of the Respondent's membership of the USHA SHRIRAM Group...."
18. It was emphasized that for a new look Usha Shriram trademark the Respondent sought and obtained consent of the applicant (Para 20). Again in rejoinder on merits to the Respondents reply in Para 1 it is stated "As regards the five block Usha Shriram Logo, the same has always been used as a house mark / corporate logo and intended to depict nothing more than membership of the Usha Shriram Group of Companies." In Para 2(V) it is averred "The Respondent has been using the trade mark Lexus Logo in respect of its products and the use by it of the five block USHA SHRIRAM logo was always intended and understood to operate as indication of its membership of the USHA SHRIRAM group of companies." Para 2 (VI) again mentions 'certain self imposed demarcations.'
19. The following issues were framed and a time table was fixed for the parties to file their respective evidence.
ISSUES
1. Whether the impugned artistic work is not an original artistic work.
2. Whether the Petitioner is a person aggrieved.
3. Whether the petitioner came to know of the registration of artistic work only in the year 2002.
4. Whether the registration was obtained surreptitiously and dishonestly without the knowledge of the petitioner.
5. Whether the petitioner had acquiesced in the grant of registration and so is not entitled to maintain the petition.
6. Whether any of the provisions of the Copyright Act or Rules were violated or not complied with.
7. What orders?
In this matter when time was given for filing of evidence the Respondent filed its affidavit in evidence with documents without waiting for the applicant to file its affidavits etc.
20. The Applicant filed its affidavit and stated that the Copyright Office could not make available for inspection original application filed by the Respondent. The applicant wanted to inspect it to prove that the registration was not in compliance with the provisions of the Copyright Act. But the applicant relied on a copy of the application filed by the Respondent alongwith its affidavit.
21. The Respondent in its evidence has produced certificates from Srilanka, Nigeria, Bhutan and some countries showing the 5 block logo registered in their name. It has also submitted copies of letters depicting use of the 5 block logo in letter heads. Another document submitted is Usha News letter (Spring issue 1991). The photographs spread on various pages of the newsletter show that Lexus and the 5 block logo were prominently exhibited. The applicant participated jointly with the respondent in all these fairs, displays and exhibitions. Another set of documents filed are caution notices containing the five block logo published in the Times of India dated 15th March 1995 and 13th May 1998 and in the Hindustan Times dated 15th September, 1998. An advertisement published in Statesman (Delhi) dated 3.5.1991, in Musafir international Magazine, 1995, in India Today, Chennai dated 1.1.1997, in Dainik Jagran, Lucknow, dated 4.11.1991, in Loksatta, Mumbai dated 4.11.1991, in Midday dated 24.12.1991 and in 29 other newspapers and periodicals from, Delhi to Trivandrum and Lucknow to United Arab Emirates in the Middle East. The Respondent has also submitted coloured copies of the containers of 18 household appliances on which Lexus and the 5 block logo are printed.
22. The Respondent has also furnished copies of various letters addressed by the applicant to the respondent which show that the applicant was placing orders on the respondent and selling various articles manufactured by the Respondent in the Eastern India. Eastern India Usha Corporation is shown in some letterheads as a division of Jay Engineering Works of the plaintiff. It has also furnished a price list of 1.7.1993 showing Lexus and the 5 block logo printed on the price list.
23. Another interesting document submitted is a copy of the Suit No. 2149 of 1994 filed before the High Court of Delhi by 6 plaintiffs jointly. The present applicant and the Respondents 1 and 2 appear in it as plaintiffs. The object of the suit was to prevent another group from using USHA. In the interim application the joint effort proved successful.
24. We heard the parties at length. The applicant's main grounds were that The logo of the Respondent reproduces the logo of the applicant in its entirety. The petals device and the word Shriram also belong to the applicant, hence the Respondent's work is not original. Reference was also made to a letter-dated 12.4.1986 from Chinar Trust requesting for a consent letter from Jay Engineering Works. The consent was given on 14.8.1986. The applicant referred to the efforts made by it to obtain a copy of the application from the Copyright Registry.
25. The applicant argued that it has been using the 4 Block USHA logo and the petal device prior to 1984. It was also contended that the Respondent did not inform the applicant when it sought to obtain Copyright Registration of the 5 Black logo. Attention was drawn to the 4 block and 5 block logo as printed in their affidavit to show that the 5 block logo was not original but was a slavish copy of the logo of the applicant.
26. It was stated by the applicant that a legal notice dated 14.9.2000 had been served on the Respondent No. 1 by which the Respondent No. 1 was asked to desist from using the impugned logo for louvre box fan. The applicant was affected by the continued use of the impugned logo, hence it was a partly aggrieved.
27. The applicant maintained that Rule 16(3) of the Copyright Rules was not complied with. Under that Rule the Respondent was bound to serve notice of moving an application for registration. It was also stated that the proviso to Section 45 was not complied with. The applicant vehemently argued that even though the proviso to Section 45 was added with effect from 9.8.1984 the Respondent No. 1 should have complied with it and obtained a certificate from the Registrar of Trade Marks in form TM 60. The line adopted was that the Respondent knew that such a provision is likely to come into force and so with a view to circumvent the provision application was made before the date when the particular provision came into force. In support of the contention that Rule 16(3) and Section 45 are mandatory the applicant relied on Kwality Ice Cream Pvt. Ltd. v. India Hobby Centre (P) Ltd. 1993 PTC 29; Triloki Nath Gupta v. Durga Prasad Gupta, 2004 (29) PTC 759 and Lal Babu Priyadarshi v. Badshah Industries, 2002 (25) PTC 173.
28. It was further argued that the letter of assignment signed by the artist Shri Shekhar Ahuja, the author of the work, was signed on 8.8.1984 while the application was filed on 7.8.1984. Therefore, the Respondent was not the owner on the date the application was filed. It was repeatedly submitted that the date of application (9.8.1984) being close to the date of enforcement of Section 45 (9.8.1984) betrays a deliberate intention to furtively obtain registration without having to obtain a certificate from the Registrar of Trade Marks.
29. After the advocate for the applicant had concluded his arguments the Board brought to his notice two things, (a) He had not made any submissions on issue No. 5. There was a specific issue whether the applicant has acquiesced in the use of the artistic work. The advocate tried to give some other colour to the issue by hair splitting. He was told that the Supreme Court has observed that its Judgments are not to be interpreted like a statute. The same thing applies here. But he did not submit anything to prove or establish that the applicant has not acquiesced. The second query from the Board was that the applicant has at least in 4 places mentioned "self imposed demarcations" or 'Limitations' but not presented any document from which it may be ascertained whether there was a division of artistic works or what was the basis of the division among the different off shoots from the main branch. To this also he had no answer. The Board told him that in that case it may draw presumptions as permitted by law.
30. The Advocate for the Respondent at the outset argued that at one point of time the parties were one economic entity. Even after division they continued to be joint and enjoyed the good will of the name USHA. They were doing business in conjunction with each other. There was an understanding that each company shall manufacture only specified goods so as not come in competition with another Usha Group Company. If A is manufacturing fans and sewing machines others will not enter that business. This was a broad understanding, which was followed. The privity between the parties is not in dispute and has been admitted by the applicant in its reply and rejoinder in many places.
31. Reference was made to the joint suit filed by 6 Usha Group companies to defend the name Usha and to interim application in which Justice R.C. Lahoti (as he then was) delivered the Judgment upholding the claims of the Usha Group. This according to him showed that each of the group companies had the right to the use of the Usha mark.
32. The Respondent says that the applicant has Usha (4 block) registration in its favour and that its 5 block logo bears similarity to it but maintains that this has to be viewed in the light of the fact that there is privity and close connection between the parties. Each party was free to make use of USHA in similar or dissimilar form but apply it to certain items only keeping in mind mutual interest and 'no competition' within the group.
33. It was further argued that there is originality in combination of integers to make it distinctive. The 4-block usha combined with flower petals with Shriram inscribed below lends it a distinctive character.
34. It was stated that the applicant had been selling the goods of the Respondent No. 1 through its outlets particularly in the Eastern part of India since 1991. This material fact has been concealed by the applicant.
35. The applicant had full knowledge of various trademark registrations made by Respondent No. 1 in India and abroad.
36. It was pointed out that one Swaran Singh of Bhagirath Palace, Delhi was earlier using USHA as a trade mark and was the registered proprietor of the trade mark. He had made several other applications for registrations. The applicant brought an action to restrain Swaran Singh but lost and did not go in appeal. Respondent No. 1 obtained an assignment from him of all the rights after paying a consideration of Rs. 5 lacs on the 1st January 1985. This is further evidence of the interest of Respondent No. 1 in the trade mark USHA. The assignment deed as also the Trade Mark registration in favour of Swaran Singh dated 14.12.1971 were submitted along with the affidavit.
37. The attention of the Board was drawn to various exhibits and annexures to establish that Respondent No. 1 had been using the 5 block logo. They are letter heads, (letters written on the eve of the new year 94-95), Usha News Letter (spring issue 1991), containing numerous photographs of Lexus marked appliances bearing 5 block logo, photographs of stalls in exhibitions where the 5 block logo is displayed prominently at the entrance and at other conspicuous places. Some pages of Usha Newsletter of January 1994 contain a large number of photographs taken at the time of release of Dr. Charat Ram's biography and has many pages showing the 5 block logo. Reference was made to various caution notices regarding the 5-block logo published in many newspapers and periodicals. Attention was also drawn to advertisements in which the 5 block logo was displayed prominently.
38. The notice sent by the L.S. Davar & Co. was explained by saying that the objection was not to the use of Usha but to the sale of Louvre fans by Respondent No. 1. It was only a test consignment from China, which was being sold. As a goodwill gesture further import was stopped.
39. Respondent No. 1 drew attention to a number of letters written by officers of the applicant to show that it was selling various appliances made by Respondent No. 1 The Containers of all these displayed the impugned logo. The letters are dated 13.3.1991, 29.4.1991 and 30.6.1991.
40. The Respondent No. 1 emphasized the fact that dealing with outsiders the situation would be different but within the Usha group it is an entirely different story.
41. The Respondent No. 1 referred to various documents to establish that the applicant knew very well, at least from 1991, the use of the 5 block work by Respondent No. 1 and yet did not take any action. This amounts to acquiescence. He cited a case Habib Bank v. Habib Bank A.G. Zurish (1982) R.P.C. 1 in support of his contention that when two entities at one time operated as a single entity then both are entitled to concurrent use of a mark.
42. In reply, the applicant traversed the same ground as earlier but added a disclaimer. It was said that the applicant did not publish the Usha Newsletter produced by Respondent No. 1.
43. We have listened to the parties at length and have gone through the numerous documents submitted by them. This is not an ordinary litigation between two competitors or between a wrongdoer and a victim. It is a matter between persons who at one time were one economic entity having common directors and who along with 3 other persons belonging to the Usha group are entitled to use of the USHA logo. It is this fact that distinguishes this matter. It is an admitted fact that 6 parties including the three who are disputants before us combined together to act as co-plaintiffs to protect the use of the USHA mark.
44. It is not known that what led M/s Jay Engineering Works the applicant to commence use of the word USHA but it is certain that Shri Swaran Singh of Bhagirath Palace, Delhi, was using it. The applicant filed a Petition No. 35 of 1976 in the Delhi High Court against Shri Swaran Singh arising out of the order of the Assistant Registrar, Trade Marks allowing registration of Usha Trademark. The High Court held in favour of the respondent Swaran Singh saying that the registration is justified. The Judgment was delivered on 10th December, 1979. It seems that no appeal was preferred and the Judgment is binding on the applicant. Later respondent No. 1 paid Rs. 5 lacs to Shri Swaran Singh and obtained assignment of the Usha Mark. This deed was executed on 1st January, 1985. Thus, Respondent No. 1 has the right to use of USHA even against the applicant because being the assignor from Shri Swaran Singh its rights are superior.
45. When the parties before us along with 3 others made a common cause before the Delhi High Court by filing Suit No. 2149 of 1994 each one of them conceded that all the plaintiffs in the suit are entitled to use USHA. None of them can go back on this. Thus, Respondent Nos. 1 and 2 have as Such right to the user of Usha as the applicant. Being assignee of Shri Swaran Singh the right of Respondent No. 1 are larger and higher.
46. Thus, having an established right to USHA Respondent No. 1 gave it a distinctive character by adding a flower and inscribing the name Shriram. The whole thing is a collage. An artistic combination with a flavour different from the mark of the applicant who uses a four block USHA. It is of interest to note that there are two registrations of USHA as given in Para 3 above. The third is the combination artwork, which is impugned. There is subtle difference between 1 and 2. Yet both are original. The difference between 2 and 3 is more marked. It has better claim to be regarded as original (Issue No. 1).
47. The applicant has been a business associate of Respondents and for a long span of time constituted one single economic entity. The evidence before us which has been recounted above in paras 21 and 22 above which is in the form, of letters and house newsletters clearly and unequivocally indicates that at least since 1991 the applicant was selling goods made by Respondent No. 1 the containers of which prominently displayed the impugned artistic work. It was also exposed on big banners and poster for all to see in various exhibitions. In these exhibitions the applicant participated jointly with Respondent No. 1 The applicant has in its affidavit at page 16 stated "...use of the impugned logo has only been to indicate that it is a member of USHA SHRIRAM group and not to claim any Copyright Ownership...". Similar observation admitting notices of existence of the artistic wok are noted in Para 17 and 18 above.
48. Thus, it is established that the applicant knew of the use of the impugned artistic work by the respondent at least from 1991 onwards. It hardly matters what the applicant thought was the purpose of such user. A logo serves myriad purposes not one.
49. The applicant came to know of the creation of the artistic work and its user much before the year 2002. The factum of registration is not a material fact in the law of Copyright. As soon as a work is created Copyright is born and vests in the creator. The Act calls it the author. Registration is only prima facie evidence. It is not mandatory. It may be useful if proof is required but non-registration will not be fatal to the existence of the right. (S.48) (Issue No. 3).
50. The applicant has been concurrent user of Usha along with some others including the respondents. It has not shown how it has suffered or likely to suffer use of the artistic work by the Respondents. Yet we have taken a liberal view and held it to be a party aggrieved. (Issue No. 2).
51. The 4th and 6th issues will be taken together. They are overlapping. The 6th issue was included at the insistence of the applicant because he wanted a wider ground. Except repeatedly saying that notice should have been served on the applicant under Rule 16(3) the applicant has not laid any ground for it. No reason has been assigned. It is to be noted that Sub-rule (3) of Rule 16 is given the present form in 1992. In 1984, at the time of the application Sub-rule (3) read as under:
(3) The person applying for registration shall simultaneously send a copy of the application to every other person interested in the Copyright of the work.
In the absence of any reasons submitted by the applicant we have nothing to hold that the applicant was a person interested in the Copyright.
52. The arguments submitted for application of proviso to Section 45 (as it stands after 9.8.84) are specious. It was argued that the application made on 7.8.1984 must have complied with the law as it would become after 2 days. Not doing so is circumventing the law.
It is trite that retrospective effect can be given to a Legislation only by the legislature. If Parliament enacted a law which was brought into force on a certain date no Court or Tribunal can make it retroactive to operate from a date anterior to the date prescribed by the Legislature or its delegate the Central Government.
There was no violation of Section 45 because on the date Respondent No. 1 moved the application the law did not require any certificate from the Registrar of Trade Marks. It fully complied with the law as it stood on the day of the application.
The argument that the date of assignment (8.8.1984) was one day subsequent to the date of the application is of no consequence. Actual assignment would have taken much before the transaction would have been completed when on receipt of the artistic work, consideration was paid to the artist. The deed of assignment may have been executed later. The purpose was to satisfy the Registrar that at the time when he considers the application of the Respondent the Respondent was the owner. It is not the case of the applicant that the artist was a fictitious person or that the assignment deed was a forgery.
It may also be mentioned that provision for issuance of certificate by the Registrar of Trade Marks and Form TM 60 were inserted in the year 1990 in the Trade and Merchandise Mark Rules, 1969.
Thus, we hold that no provision of the Copyright Act or Rules were violated or not complied with.
53. The applicant has stated that the registration was obtained surreptitiously and dishonestly but riot an iota of evidence was produced in support of the statement. From the records also we could not locate any dishonest or fraudulent conduct on the part of the respondents.
54. We now come to issue No. 5 - whether the applicant has acquiesced. At this juncture we refer back to Para 29 supra. We reminded the applicant that the he has not addressed us on the point of acquiescence. But the applicant chose not to avail of the opportunity to establish that he is not disentitled to relief on the ground of acquiescence.
55. It has been clearly established that the impugned artistic work was within the knowledge of the applicant at least from 1991 onwards. The applicant continued to stock, sell and marked the goods prominently carrying the impugned work (p 274 to 312 of evidence of the Respondent No. 1) Trade Mark, caution notice and advertisements were published from 1995 onwards in newspapers and other periodicals depicting the impugned work [(p 196 -19) and 202 to 236 of the evidence of the respondent The work was displayed in trade fair and exhibitions. The applicant encouraged and assisted Respondent No. 1 in all these activities.
The applicant filed the present application only in October 2003 but it is established that he came to know of the work in 1991, if not earlier.
56. The conduct of the applicant in stocking, selling and marketing the goods bearing the artistic work about which it now complains after a lapse of 12 years amounts to acquiescence. It may also be called acceptance sub silentio. The law regarding acquiescence and laches is so old that we need not make reference to leading cases to explain what it is. Acquiescence amounts to waiver of a right and what has been waived cannot be claimed again. In this case the applicant concurred and encouraged and actively collaborated with the respondents. It has admitted, [(page 458 para (01)] that the applicant and the respondents participated in trade fairs and other promotional activities jointly. In all these the Respondent's 5 block logo was being displayed. This went on for decades. It is a clear case of acquiescence, that is the reason why the applicant has made no attempt to defend itself.
57. The plea of acquiescence had been specifically raised and was an issue framed. The applicant was in a position to show the circumstances in which the conclusion of acquiescence may not be drawn. The applicant had absolutely nothing to say in defence. It is true that there is no specific provision in the Copyright Act, 1957 laying down the general grounds on which relief may be refused. But the principles of justice, equity and good conscience are universally applicable to all proceedings before every Court and Tribunal dispensing justice. It would be most unjust to entertain stale claims as well as to condone waiver and acquiescence. The applicant has by his conduct disabled himself from claiming relief. They are estopped from getting any relief.
58. Out attention was drawn to a decision from the Court of Appeals of U.K. Habib Bank Limited v. Habib Bank A.G. Zurich (1982) R.P.C. 1.
The case pertains to an action of passing off but the facts bear a close similarity to the one before us hence it is instructive and has persuasive value.
The Habib family incorporated a banking company in Bombay in 1941 by the name and title Habib Bank Limited (HBL). In 1952 they incorporated another banking company to handle overseas business. It was called Habib Bank Overseas (HBO). The two companies were known to the public as "the Habib Bank" and regarded as single entity. In 1967 they opened a Bank in Switzerland, Habib Bank A.G. Zurich (HBZ). The Habib family had a minority share (45%) in this Bank. But its business was run by HBL till 1974. In 1973 HNZ opened a branch in London. In 1974 HBL and HBO were nationalized. The Habib family ceased to have any say in HBL and HBO. At the same time the Habib family were forced by the Pakistan Government to transfer their holdings in HBZ to the Government. In 1974 HBZ moved to a new premises with the active cooperation and help of the management of HBO. Till 1977 their relations were fraternal with no discord. It was in July 1977 that a demand was made on HBZ to discontinue the use of its corporate name in U.K. Ultimately the matter came before the Court of appeals. The Court found that there was no mala fides alleged against HBZ. The trading name and object of HBZ was decided by HBO's predecessors. They had done business together and HBO helped HBZ at all stages. The Court found that the plaintiff had acquiesced and refused to give them any relief.
59. We hold that Respondent No. 1 was a honest concurrent user of USHA and as assignee from Shri Swaran Singh had superior rights as compared to those of the Applicant. The weight of evidence is preponderantly in favour of the Respondents There is not an atom of evidence to conclude and hold that Respondent No. 1 had violated any of the provisions of Copyright Act or Rules framed there under.
60. We also hold that the conduct of the applicant for a very long period specially as a selling arm of Respondent No. 1, coupled with inordinate delay of at least 12 years, and the encouragement and endorsement given in trade fairs, exhibitions amount to acknowledgement of Respondent's right to use and continue to use the impugned artistic work. It also shows that the applicant had waived its rights to bring an action at law. It is clear that both parties had agreed to use the same name and similar style. The attitude was to live and let live. Respondent No. 1 was making use of the artistic work openly. The use was not secretive. It was known throughout the length and breadth of India and the applicant was for years assisting Respondent No. 1 in spreading the logo. It cannot now turn around and question the legality of the use. It would be insufferable injustice to allow him to do so.
61. On the above premises we hold that application is devoid of any merits and deserves to be rejected.
62. Even if there were any merit in it the applicant by clear acquiescence waived his legal right (if any existed) and has disentitled himself to obtain any relief from this Board.
Application rejected.