Copyright Board
Jaininder Jain vs Kangaro Industries (Regd) And Anr. on 1 August, 2005
Equivalent citations: 2006(32)PTC411(CB)
ORDER
Brij Kishore Sharma, Chairman
1. These two appeals were filed by Shri Jainendra Jain a resident of Civil lines, Ludhiana against a single order passed by the Registrar of Copyrights. This is a rather weird procedure to adopt. The law does not allow an appellant the privilege of filing an appeal everyday till the period fixed by the statute expires. The law abhors splitting of a cause of action and leans in favour of curbing multiplicity of proceedings. The cause of action in this case is the order of the Registrar. An aggrieved party may file only one appeal and claim whatever relief is desired. Order 2 Rule 2 and. Section 96 of the Code of Civil Procedure lay down these principles. Section 72(1) of the Copyright reads as under:
(1) Any person aggrieved by any final decision or order of the Registrar of Copyrights may, within three months from the date of the order or decision, appeal to the Copyright Board.
2. This only means that the aggrieved person has the right to file one appeal. The law does not permit splitting up of a claim or multiplication of proceedings by filing successive appeals. Instead of filing a second appeal it would have been better to amend the first appeal in case the appellants felt the necessity to do so. We requested the advocate for the appellant to tell us the difference between the two or to choose one of the appeals as the base. He selected the later one filed on 9.5.2002 and numbered as Appeal No. A 3/2003. This facilitated and helped the opposite party and the Board in looking up references.
3. The Appellant is aggrieved by an order passed by the Registrar of Copyrights in 28.2.2002 allowing the application of Kangaro Industries to register an artistic work. The application was opposed by the present applicant. The Registrar heard both the parties at length and gave a reasoned order allowing the application.
4. The appellant feels aggrieved by the order and has preferred the present appeal.
The grounds taken in the appeal are:
1. The decision is contrary to the facts of the case.
2. The decision is contrary to law.
3. The Registrar failed to appreciate the provisions of Rule 16(3) of the Copyright Rules.
4. The Registrar has failed to appreciate and follow the decisions of the Board.
5. The Registrar should have differed giving a decision till some other matter viz. COS of 1997 and FAO (OS) 130 of 1997 pending before the High Court were finally disposed of.
6. The Registrar should have awaited the decision of various suits pending at Ludhiana (which have in the year 2003 been transferred to the Delhi High Court).
5. The appellant also submitted an application on 30.11.2004 for seeking stay of the hearing of the appeal. This was made because the Board was to hear the matter on 2.12.2004.
6. The application repeatedly states that many suits and appeals are being contested and fought between Shri Jaininder Jain, Shri Janaki Das Jain and Smt. Kiran Jain on the one side and the present respondent and Shri Arihant Jain and some others on the opposite side.
7. We have along with the appellants advocate carefully read every word of the application and the documents annexed to it. The legal proceedings referred in it are either civil suits or suits pertaining to trade mark. There is absolutely nothing in it related to registration of an artistic work under the Copyright Act. The appellant has not been able to point out any provisions in the Copyright Act or Rules framed thereunder on in any other law which states that Copyright matters are subsequent to trade mark and civil disputes and should be heard and decided after the above disputes are finally settled.
8. Much stress was laid on an order passed by a Civil Court on 7.1.1997 in Suit No. 7 of 7.12.1996 in the following terms.
Learned Counsel for Respondents Nos. 1 to 4 claims that he is the registered owner of Trade Mark Kangaro. Plaintiff No. 1 claims that he is using the same as owner. Let status quo regarding use of trade mark be maintained and W.S be filed on 10.1.1997.
9. By no stretch of imagination or logic this order can be interpreted to cover the present proceeding or the proceedings that were before the Registrar of Copyrights. In fact the proceedings before the Registrar commenced in the year 2001.
10. What the Board has to decide is a very small question viz. whether the artistic work which was registered is an original artistic work in which Copyright subsists under Section 13. It has nothing to do with Trade Mark.
11. Thus, we are unable to persuade ourselves to agree to the request for stay. The application is totally misconceived, has no legal basis and is an attempt to abuse the legal process. We have no hesitation in rejecting the application.
12. Earlier on 2.12.2004 and on 9.2.2005 the Board had directed the parties to argue on maintainability as well as on merits.
13. The Respondent submitted that:
(a) the appeal was misconceived and based on misconception of the laws as are applicable to an artistic work under the Copyright Act. The appellant is seeking to apply the principles of the law of trade marks and passing off in the present proceedings.
(b) The pending disputes between the parties before the High Court at Delhi or the District Judge at Ludhiana have no relevancy to the registration of an artistic work.
(c) The disputes before the High Court and District Judge are pertaining to the year 1995 when some of the partners retired from the firm Kangaro Industries. They involve the interpretation of a retirement deed and an allege family settlement. The Board has no jurisdiction to consider their validity.
(d) The artistic work has been registered, so the only remedy available to the appellant is an application under Section 50 praying for expunction.
(e) The artistic work registered by the order of the Registrar is an original artistic work and the pendency of disputes between the parties about ownership of trademarks do not effect it.
(f) The Trade Mark Kangaro belongs to the respondents and this has been accepted by the learned Single Judge as well as by the Division Bench of the Delhi High Court.
(g) On 10th Nov., 1999 the respondent applied for registration of an artistic work. On 9th July 2001 the Registry informed the respondent that by a letter dated 28th October 1999 objections have been filed against it. Thus, the objections were filed even before the artistic work was filed.
(h) The appellant is not a party aggrieved.
We heard the advocates of both the parties at length.
14. There is no doubt that there are legal proceedings pending in the Delhi High Court. The cases pending at Ludhiana have also been transferred to Delhi High Court by orders of the Hon'ble Supreme Court dated 8th September, 2003 and 17th September, 2003. These proceedings related to the retirement of some partners, validity of a family settlement and ownership of some trade marks.
15. It is a material fact that the impugned artistic work was first published in India in the year 1996. This was stated by the respondent in the application made to the Registry. The author according to the application is Shri Atul Sharma, a resident of Chandigarh. The work consists of a Kangaroo jumping out of circle in which three horizontal and three vertical lines are drawn making the circle look like a globe. The application for registration was made on 10th November, 1999 but the objection is dated 28th October, 1999.
16. The Registrar treated the objection as a Caveat and heard both the parties before passing an order. Thus, there is no procedural infirmity in the order.
17. The main plank of the arguments on behalf of the appellants was that many disputes were in existence between the parties since 1996 yet no notice was given under Rule 16(3). It was also argued that because 'Kangaro' trade mark was at one time the property of a partnership firm therefore the respondent was bound to serve notice on all previous partners.
18. The arguments are far fetched and irrelevant. An artistic work is a novel creation. It must be original. In other words it must be something new. In this case the respondent engaged a person to produce the impugned artistic work. The appellant does not aver that it is not original. He does not state that it is a copy of some other work. He does not say that it is not artistic. He does not allege that it is slavish imitation of his work. He insists that he must have been served a notice. He is not able to produce any provision of law which states that no creative artistic work may be produced without prior permission of a former partner. It may be pointed out that copyright subsists in an artistic work even without registration (Section 13). Registration is only prima facie evidence of the particulars entered in the Register of Copyrights. (Section 48)
19. Copyright exists independent of registration. Copyright is a right which provides protection to creativity. The law does not require that for creating an artistic work an employee must seek the permission of the employer, or a partner must obtain a licence from his existing or previous partners or a firm or from all the outgoing or retired partners.
20. It was vehemently submitted that 'Kangaro' trade mark belonged at one time to a partnership of which the appellant was a member and so no device containing or depicting the animal 'Kangaro' may be registered under the Copyright Act. The proposition borders on absurdity. Elephant, monkey, horse, hare, mouse, cat and many other animals are drawn every day by artists and they have been so drawn for thousands of years. A trade mark of an elephant does not imply that no one in the world may henceforth draw an artistic work containing an elephant. A trademark does not put a stop on creativity. No provision of law was cited by the appellant in support of his contention.
21. A partnership firm usually conducts a trade or business. Every day of its existence it acquires and sells property, transacts business and strikes deals for which it acts according to the partnership deed. No person who has retired as a partner may claim that he must be noticed before any transaction is done by the partnership firm or before any right to property is acquired. Once a partner retires he has no relation with the firm, he is no more responsible for the acts of other partners. Copyright is a right to property. It is at par with chattels and movable property. When a partnership acquires a copyright it is under no obligation to seek permission of or serve notice to retired partners.
22. Even for arguments sake if it is conceded that the appellant was entitled to notice under Rule 16(3), it does not help the appellant. He objected to the registration and appeared before the Registrar. The registrar gave him full opportunity to present his case and passed an order after carefully examining the submissions made before him. Thus in a way Rule 16(3) has been complied with, concerned with the substance and not with the form. The purpose of Rule 16(3) is to afford an opportunity, to the persons who claim an interest to object to the application for registration. The appellant got full opportunity. He could not have asked for more. It is not his grievance that he was not heard. His grievance is that he was not given notice under Rule 16(3). But he knew of the application even before it was filed. He filed his objections before the application was filed and got a full opportunity to be heard. Rule 16(3) embodies the doctrine of procedural fairness. The appellant was fully aware, had filed an objection and was given the fullest opportunity to present his case and so absolutely no prejudice was caused to him. He has got the grain. The law does not care about the husk which is but an empty formality. So even if Rule 16(3) were attracted it has been fully complied with. The appellant has no ground to complain.
23. The appellant has failed in pointing out any formal or substantive infirmity in the order of the Registrar. He has failed to establish that the order is contrary to law or facts. We find that the Registrar passed an order after hearing both the parties. He meticulously considered every submission made before him and passed an order which is commendable in its legal content and has high literary merit. We find no reason to modify or annual the order.
24. There is no merit in the appeal and it deserves to be rejected.