Gujarat High Court
Ipeg Inc. & 2 vs Kay Bee Engineers & on 7 April, 2016
Equivalent citations: AIR 2016 GUJARAT 104
Bench: S.R.Brahmbhatt, K.J.Thaker
C/FA/2372/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2372 of 2015
With
CIVIL APPLICATION NO. 12546 of 2015
In
FIRST APPEAL NO. 2372 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE K.J.THAKER
======================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India or any order made thereunder ?
====================================== IPEG INC. & 2....Appellants Versus KAY BEE ENGINEERS & 1....Defendants ====================================== Appearance:
MR.H.S.TOLIA, ADVOCATE WITH MR YJ TRIVEDI, ADVOCATE for the Appellant Nos.13 MS.RUSHVI SHAH FOR DR RAJESH H ACHARYA, ADVOCATE for the Defendant Nos.12 ====================================== CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT and HONOURABLE MR.JUSTICE K.J.THAKER Date : 07/04/2016 Page 1 of 40 HC-NIC Page 1 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT C.A.V. JUDGMENT (PER : HONOURABLE MR.JUSTICE K.J.THAKER)
1. Heard learned counsels for the parties.
2. By way of this appeal, the present appellants - original plaintiffs begs to challenge the order dated 27th August 2015 passed by the 7th (Adhoc) Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur in Trade Mark Suit No.1/2015 whereby the Ld. Judge has pleased to reject the plaint under Order - 7 Rule - 11 (d) of Code of Civil Procedure, 1908 (for short 'CPC').
3. The facts in brief as could be culledout from the memo of the appeal are as under :
4. That the plaintiffs are the leading manufacturers of plastic auxiliary equipments. The plaintiffs are manufacturing different auxiliary equipment for the plastic industries including loader/receiver.
Various geometrical/engineering/mechanical drawing are prepared by the plaintiffs for the purpose of manufacturing the machines. Within the meaning of Sec. 2 (c) of the Copyright Act, drawing including diagram, map, chart or plan are also included in the definition of "artistic work". Thus, the plaintiffs are owner of the copyright contained in above artistic work of diagram etc., under the Copyright Act. One artistic work, as referred above, is adopted by the plaintiffs in respect of one of its products related to loader/receiver used in the field of plastic auxiliary equipment. That the drawings of loader/receiver are quite unique. Therefore, no other one can use the said drawing i.e. diagram, map, chart, plan etc., in respect of the above drawings of loader/receiver without the permission of the plaintiffs.
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5. The defendant no.1 copied and substantially reproduced the artistic work of drawing, etc. of the plaintiffs, as referred above. Further, defendant no.1 copied the said drawings to manufacture similar product and thereby committed infringement of the artistic work lying in the drawings itself. Therefore, the plaintiffs have filed the suit inter alia making averments that defendants have made substantial and material reproduction of the copyright in the artistic work of the drawings without any permission or licence from plaintiffs' company.
6. The suit is based on the artistic work lying in the drawings of loader/ receiver itself and not for application of any feature of shaper, configuration, pattern ornament, composition of lines, etc. to any article. The said aspect is evident from the pleadings in the plaint. After issuance of the summons, the other side appeared and submitted an application under Order 7 Rule 11 r/w. 151 of CPC inter alia praying to reject the plaint.
7. After hearing both the parties, the learned Judge is pleased to allow the application and thereby rejected the plaint vide impugned order.
8. Being aggrieved by the aforesaid order dated 27th August 2015, the present appellants - original plaintiffs beg to prefer this appeal.
9. Learned counsel for the appellants filed their written submissions, which in verbatim are as under : "1. Plaintiff is the owner of the copyright in artistic work in drawing/diagram of its mechanical device namely Loader/ Receiver which Page 3 of 40 HC-NIC Page 3 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT are produced with Paper Book from page 66 to 73. The said drawings are part of the patent granted by the U.S. Patent Authority. Thus, the said drawings are themselves demonstrating the mode of principle of construction/ making of above machine.
2. Under Sec. 14 (c) (B) of the Copyright Act, 1957 plaintiffs have exclusive right in respect of said artistic work to reproduce the work in any material from including depiction in three dimension of two dimensional work like industrial drawing/diagram. The defendants started to infringe the above exclusive right of the plaintiffs by reproducing the above artistic work in three dimensional from i.e. manufactured identical machine. Therefore, as per Sec. 51 of the Copyright Act, the copyright is infringed and the plaintiffs filed suit for infringement of the copyright in artistic work of above drawings.
3. For the purpose of cause of action, plaintiff has made detailed averments in Para - 9 (....defendant is engaged in the imitation of the plaintiff's copyright in drawings and artistic works of the plaintiff by manufacturing.....), Para 11 (...trade secrets unique drawings and artistic works of the plaintiffs and use it for its own benefit in the market.....), Para 13 (....defendant is openly engaging drawings/ artistic works of the plaintiffs... ... ... How defendant is copying unique and innovative drawings and artistic works of the plaintiffs titled as "Loader/Receiver".), Para 16 (... ... plaintiff is the owner and their intellectual property of the drawings and copyrights are protected under the Copyright Act. The defendants have made substantial and material reproduction without the permission or license from the plaintiff, hence, held themselves liable for infringement of copyright. ...). Further similar detailed averments are made in para 18, 21 etc.
4. Plaintiffs have also averred cause of action of breach of trust and confidence to the effect that defendant no.2 has stolen / divulged the trade secret of above drawings in para 11, 17 etc., of the plaint.
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5. The prayers in the plaint are (A) to restrain defendants from printing etc., the artwork and use the artistic work ; (B) direct defendants to hand over drawings, stationary/ advertisement material, which are substantial and material reproduction of plaintiffs drawings and artistic work; (C) direct the defendants to give details of persons who got prepared the said drawings and artistic work and to whom the defendants have sold and supplied the drawings and artistic work ; (D) to give business account/ profit, (E) damage, etc.
6. Defendants appeared and filed application under Order & Rule 11 of CPC taking defense of Sec. 15 (2) of the Copyright Act. Defendants contended essentially that since the drawings have been transformed into machine i.e. loader/receiver more 50 times, the copyright will lost as per Sec. 15 (2). Vaguely, the defense of no cause of action and barred by law is taken by the defendants.
7. The learned Judge has essentially observed that "as the artistic work sheerly operates within the realm of art and the moment it is being transformed into the commercial article by industrial application, such design which is even if based upon the artistic work falls within the domain of the Design Act which attracts and brings such design within the limitation of Sec. 15 (2) of the Copyright Act."
In summing up, the learned Judge observed that the impugned artistic work that has been transformed into commercial article i.e. Loader/Receiver is very much capable of being registered under the Designs Act. Ultimately, it is concluded that provision of Sec. 15 (2) of the Copyright Act does not bar the suit but its take away the copyright from the plaintiff and thus, there is lack of cause of action. Thus, the suit stands rejected. That order is under Page 5 of 40 HC-NIC Page 5 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT challenge in the present First Appeal.
8. The scope and ambit of O.7 R.11 of CPC, as observed by the Hon'ble Supreme Court in the case of P. V. Guru Raj Reddy Rep. By Gpa Laxmi Narayan Reddy V/s. P. Neeradha Reddy & Ord., reported at 2015 (8) SCC 331 are as under : "5. Rejection of the plaint under Order VII rule 11 of the CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order VII rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that has to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order VII Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint exfacie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial.
6. In the present case, reading the plaint as a whole and proceeding on the basis that the averments made therein are correct, which is what the Court is required to do, it cannot be said that Page 6 of 40 HC-NIC Page 6 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT the said pleadings ex facie discloses that the suit is barred by limitation or is barred under any other provision of law. The claim of the plaintiffs with regard to the knowledge of the essential facts giving rise to the cause of action as pleaded will have to be accepted as correct. At the stage of consideration of the application under Order VII Rule 11 the stand of the defendants in the written statement would be altogether irrelevant."
9. Further, the Hon'ble Supreme Court in the case of Jageswari Devi V/s. Shatrughan Ram reported in 2007 (15) SCC 52 held as under : Para - 3 : "... It is relevant to state that there is a difference between the Nondisclosure of a cause of action and defective cause of action : while the former comes within the scope of Order 7 Rule 11, the latter is to be decided during trial of the suit. The contention raised on behalf of the appellant that the cause of action disclosed is vague and incomplete, is not a ground for rejection of the plaint, under Order 7 Rule 11 CPC no exception can be taken to the order."
10. Looking to the plaint, the plaintiffs have categorically averred and pleaded the cause of action of copyright in artistic work of drawing and breach of trust or confidence. The same is clearly set out in plaint as stated herein above in para 2. At present, the same has to be treated as it is. Without admitting anything, even if there is loose pleading, the same shall not fall within the scope and ambit of O.7 R.11 of CPC. Sec. 15 (2) of the Copyright Act, the defendants are required to prove (i) there is copyright in Page 7 of 40 HC-NIC Page 7 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT design and (ii) the same is capable of being registered under the Designs Act, 2000 (substituted for Designs Act, 1911 w.e.f. 21.6.2012). Therefore, the said defence requires trial and does not fall within the scope and ambit of O.7 R.11 of CPC. The learned Judge has also rightly observed that the said provision does not bar the suit.
11. In any case, the provisions of Sec. 15 (2) of Copyright Act does not apply in the present case on the face of it. To avail the defence of Sec. 15 (2) of the Copyright Act, defendants have to prove that there is design capable of being registered under the Designs Act, 2000. Therefore, it is mandatory to consider the provisions of the Designs Act, 2000. Further, material change in the definition of "design" in Designs Act, 1911 and Designs Act, 2000 are important which are reproduced hereunder : Designs Act, 1911 Designs Act, 2000 Sec.2(5) "design" means only the Sec. 2 (d) "design" means only the features of shape, configuration, features of shape, configuration, pattern or ornament applied to any pattern, ornament or composition article by any industrial process or of lines or colours applied to any means, whether manual, article whether in two dimensional mechanical or chemical, separate or or three dimensional or in both combined, which in the finished article appeal to and are judged forms, by any industrial process or solely by the eye; but does not means, whether manual, include any mode or principle of mechanical or chemical, separate construction or anything which is in or combined, which in the finished substance a mere mechanical device, article appeal to and are judged and does not include any trade solely by the eye; but does not mark as defined in clause (v) of sub include any mode or principle of section (1) of section 2 of the Trade construction or anything which is and Merchandise Marks Act, 1958, in substance a mere mechanical or property mark as defined in device, and does not include any section 479 of the Indian Penal trade mark as defined in clause (v) Code (45 of 1860);
of subsec. (1) of Sec. 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in Sec. 479 of the Indian Penal Code (45 of 1860) or Page 8 of 40 HC-NIC Page 8 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT any artistic work as defined in clause (c) of Sec. 2 of the copyright Act, 1957 (14 of 1957).
(Emphasis supplied)
12. Thus, the "artistic work" as defined in sec. 2 (c) of Copyright Act, 1957 is specifically excluded from the definition of "design" in the Act of 2000. The drawings including industrial drawings, diagram, etc. are included in the said definition of "artistic work".
13. Further, the change in provisions of Sec. 15 (2) of the Copyright Act i.e. as stood before 21.6.2012 and thereafter are very important, which are as under : Copyright Act, 1957 Copyright Act, 1957 Sec. 15 (2) before 21.6.2012 Sec. 15 (2) after 21.6.2012 (2) Copyright in any design, which (2) Copyright in any design, which is capable of being registered under is capable of being registered under the [***] Design Act, 1911 (2 of the [***] Designs Act, 2000 (16 of 1911), but which has not been so 2000), but which has not been so registered, shall cease as soon as registered, shall cease as soon as any article to which the design has any article to which the design has been applied has been reproduced been applied has been reproduced more than fifty times by an more than fifty times by an industrial process by the owner of industrial process by the owner of the copyright or, with his licence, the copyright or, with his licence, by by any other person. any other person.
Taken From GLHEL Taken From GLHEL (Emphasis supplied)
14. Thus, after 21.6.2012, industrial diagram or drawing being artistic work within the meaning of Sec. 2 (c) of the Copyright Act would not fall within the scope and ambit of Sec. 15 (2) of the Copyright Act. Therefore, since the cause of action of the present case is the artistic work in the drawing, the same would not fall within the scope of Sec. 15 (2) of Page 9 of 40 HC-NIC Page 9 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT Copyright Act as the same is not capable of being registered under the Designs Act, 2000 (16 of 2000).
15. Further, "mechanical device" is excluded from the definition of design. Further, the drawings of the plaintiffs are themselves showing "mode or principle of construction"/ making of its "mechanical device"/ machine i.e. loader/ receiver. Further, there is not question of features of shape, configuration, pattern, etc. which in the finished article "appeal to and are judged solely by the eye". Therefore, also the same are excluded from the definition of "design".
16. The above vital provisions of law and change in the law is completely ignored by the learned Judge in the impugned order. The impugned order is patently illegal and erroneous because
(i) the learned Judge has erroneously concluded that artistic work sheerly operates within the realm of art and thus ignored that the definition of "artistic work"
which includes diagram, drawings including industrial drawings and need not possess artistic quality as per the definition of "artistic work" in Sec. 2 (c) of the Copyright Act.
(ii) the learned Judge has not at all taken into consideration whether the alleged "design"
is capable of being registered under the Designs Act, 2000 or not (not Design act of 1911). There is no discussion in respect of Page 10 of 40 HC-NIC Page 10 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT definition of "design" in the entire impugned order.
(iii) Further, the finding that "the moment its (artistic work) being transformed into commercial article.... falls within the domain of Design Act ... ..." is contrary to the definition of "design" as defined u/s. 2
(d) of Designs Act, 2000.
(iv) The above impugned finding is based on certain decisions which are under the provisions of Designs Act, 1911 only i.e. interpreting the provisions of Sec. 15 (2) of the Copyright Act before 21.6.2012, and meaning of the Design under the Design Act, 1911 as demonstrated above. Thus, the finding is based on the law which has been repealed/amended on the above material aspect.
(v) Further, the learned Judge has failed to consider the scope and ambit of O.7 R.11 of CPC as laid down by the Hon'ble Apex Court recently in the case of P.V. Guru Raj Reddy (supra) (para 5 and 6).
(vi) Suit is also for breach of trust and confidentiality as stated above. As per Section16 of the Copyright Act, No provision of Copyright Act shall be Page 11 of 40 HC-NIC Page 11 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence.
17. Defendants have heavily relied on the judgment of Devendra Somabhai Naik V/s. Accurate Transheat Pvt. Ltd., reported at 2005 (31) PTC 172 (Guj) (DB). However, above judgment (Para 5) is under the provisions of Designs Act, 1911 and not Designs Act, 2000. The same was under the provisions of Sec. 15 of the Copyright Act as stood before the amendment effective from 21.6.2012. Thus, the same is not applicable in view of change in the provisions of law as stated in Para 11 to 14 hereinabove. Further, in above judgment, it was appeal u/s. 72 of the Copyright Act i.e. against the proceedings tried before Copyright Board. Before Copyright Board, the entire trial is being conducted and parties are granted opportunity to lead the evidence. Further, the copyright was in design and not in artistic work was essentially not much disputed. The Copyright Board in trial had also observed that allegation is of reproduction of the design. Thus, the same judgment is not applicable because of, material change in the Law as above.
18. The another judgment relied upon by the defendants is the case of Microfibres Inc. V/s. Girdhar & Co. & Anr. Reported in 2009 (40) PTC 519 (Del.) (DB). It is pertinent to note that the same was in respect of upholstery fabrics with designs derived from artistic work. Further, in above judgment also, the Hon'ble Court naturally considered the provisions of Section 15 (2) of the Copyright Act as stood before 21.6.2012 i.e. "capable of being registered" under the Designs Act, 1911 and not capable of being registered under the Decisions Act, 2000. In any case, the floral or such design used on upholstery are naturally made for "appeal to eye" and the same can be "solely judged by the eye" and thus quite different and distinct Page 12 of 40 HC-NIC Page 12 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT from the meaning of "artistic work" u/s. 2 (c) of the Copyright Act. In any case, the above case is based on the judgment after trial i.e. leading of the evidence and not applicable in the case of Order 7 Rule 11 of CPC. Further, there was no question of industrial drawings or mechanical device or mode of principle of conclusion.
19. The defendants have raised new plea of provisions of Section52 (w) of the Copyright Act in this appeal. The said provision reads as under : Section - 52 : Certain acts not to be infringement of copyright : (1) The following acts shall not constitute an infringement of copyright, namely :
(a) to (v) xxxxxx (w) the making of a threedimensional object from a two dimensional artistic work, such as a technical drawing, for the purpose of industrial application of any purely functional part of a useful device; (Emphasis supplied).
20. Thus, the test is of "purely functional". Thus, out of entire drawing if any part satisfied the rest of pure functionality then qua that part there would be no infringement. Any other interpretation shall held the entire copyright act nugatory and even the copyright in design shall not be available for first fifty article to which the design is applied, as per section15 (2) of the Copyright Act itself. This court in the case of Civil Suit No.2 of 2015 Symphony Ltd., V/s. Wim Plast order dated 5th August 2015 in para 14 has considered the aspect of "Functionality". As per that precedent, this submission of the defendants is also devoid of any merits. The above judgment is also confirmed by Hon'ble Court of Division Bench in OJ Appeal Page 13 of 40 HC-NIC Page 13 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT No.32 of 2015."
20. Learned counsel for the appellants relied on the following authorities.
(i) 2014 (60) PTC 563 Photoquip India Ltd., V/s. Delhi Photo Store & Anr., (relevant paragraph nos.1, 10, 24, 25, 26, 27, 29, 33, 34).
(ii) 2014 JX (Mad.) 793, Standard Corporation India Ltd., V/s. Tractors and Farm Equipment Ltd., (relevant paragraph nos.3, 4, 9, 20, 24, 25 and 27).
(iii) 2009 (39) PTC 609, Indiana Gratings Pvt.
Ltd., V/s. Anand Udyog Fabricators Pvt.
Ltd.,
(iv) AIR 1992 BOM 195, Hindustan Lever V/s.
Nirma.
(v) 2014 (59) PTC 149 (Del.) Jagdamba Impex
V/s. Tristar Products Pvt. Ltd.,
(vi) Civil Appeal No.8593 of 2014, M/s. Tri
Star Products Pvt. Ltd., V/s. M/s. Jagdamba
Impex.
21. Learned counsel for the respondents filed their written submissions, which are required to be reproduced in verbatim as under : "The appellants herein challenged the order dated 27/08/2015 passed by the Ld. 7th (Adhoc) additional Judge, Ahmedabad (Rural) at Mirzapur in Trademark Suit No.1 of 2015 wherein the Hon'ble Court had rejected the suit under the provisions of Order 7 Rule 11 (a) & (d) of the Code of Civil Procedure, 1908. Being aggrieved by the said order, the Page 14 of 40 HC-NIC Page 14 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT appellants filed the present First Appeal.
The focal argument of the respondents herein is that the suit is not at all maintainable as the same is barred by law and does not disclose real and genuine cause of action to file the suit. The appellants has no right to sue, either for alleged copyright, the suit is based on such false claim, is nothing but a clear case of abuse of process of law and the appellants as not disclosing "the real cause of action" moreover the appellants have filed present suit with malafide intention just to harass the respondents to drag the unnecessary litigation. Therefore, the Hon'ble Learned Judge has rightly rejected the plaint under Order 7 Rule 11 (a) and (d) of the Code of Civil Procedure. Therefore, as per the settled principle laid down by the Hon'ble Apex Court in Smt.Patasibai and others V/s. Ratanlal J.T. 1990 (3) S.C.68, which while dealing with Order 7, Rule 11 and rejection of the plaint on the ground that no cause of action was disclosed has held that mere issuance of summons by the trial Court does not require that the trial should proceed even when no triable issue is shown to arise. The question involved in the case was the maintainability of the suit which had given rise to the appeal. The appellants contended that the suit was not maintainable even on the plaint averments. The trial Court held the suit to be maintainable and the High Court dismissed the appellants revision affirming that view. The Supreme Court, however, observed that on the admitted facts appearing from the record itself the counsel for the respondent was unable to show that all or any of the averments in the plaint disclose a cause of action giving rise to a triable issue or to dispute the inevitable consequence that the plaint was liable to be rejected under Order 7 Rule 11 and since summons had been issued the trial must proceed. The Court then held that in its opinion it would make no difference that the trial Court failed to perform its duty and proceeded to issue summons without carefully reading the plaint and the Page 15 of 40 HC-NIC Page 15 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT High Court also overlooked this fatal defect. Since the plaint was suffering from this fatal defect the mere issuance of summons by the trial Court did not require that the trial should proceed even when non triable issue was shown to arise because permitting the continuance of such a suit would be tantamount to licensing frivolous and vexatious litigation which should not be allowed.
And the Hon'ble Apex Court in A.I.R. 1987 S.C. 1577, the Supreme Court has observed that it is the duty of the Court to examine the plaint and it need not wait till the defendant files written statement and points out the defect. If the Court on examination of the plaint finds that it does not disclose any cause of action, it would be justified in striking out the pleadings. Order 6, Rule 16 itself empowers the Court to strike out the pleadings at any stage of the proceedings. It may even be before the filing of the written statement by the defendant. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the Court need not wait for the filing of the written statement. Instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the Court finds that no triable issues remain to be considered, it has power to reject the election petition under Order 7, Rule 11. Thus, after striking out the pleadings if the Court finds that no cause of action remains to be tried it would be duty bound to reject the petition under Order 7 Rule 11 C.P.C.
That the suit of the appellants is barred by law on the following grounds.
A. The title of the suit is "SUIT FOR INFRINGEMENT OF COPYRIGHT AND ACCOUNT OF PROFIT". By minutely reading the entire Page 16 of 40 HC-NIC Page 16 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT plaint, it has come out that the appellants are claiming rights over the final output of the product i.e. article. Hence, the entire plaint should be looked as a whole and the same is based upon article/final product and not for any copyright. Furthermore, the entire contentions made in the plaint as well as the documents produced by the appellants clearly shows that the appellants compared the actual machine i.e. Article with the respondent's machine and not with the alleged artwork. Therefore, it is nothing but a clever drafting and so, abuse of the process of law. The appellants claimed, the product i.e. article which is defined under Section 2 (a) of the Design Act, 2000 under provision 2 (c) which describes "Copyright in Design" and Section 2 (d) which describes the meaning of "Design". In view of the above provisions, it is clear that the appellants' product does not fall under the Copyright Act and hence barred by the law.
B. The appellants alleged that they applied for the patent of the alleged article but after microscopic examination of the said document, it is clear that the same is not for patent but for design as the CLAIM mentioned at Sr. No.57 says that "The Ornamental DESIGN for a titled loader/receiver, as shown and described." Furthermore, the bottom portion therefrom indicates that the same application is not for Patent but for Design only. The said portion also says that "The broken line showing is for illustrative purpose only and forms no part of the CLAIMED DESIGN". Moreover, the Patent No. US D560, 697 as described in Sr. No.10 indicates the alphabet "D" which is admittedly for Design only and not for the alleged patent. The same is also admitted by the appellants in para 4 of the plaint that "The plaintiff has also registered a novel artistic works AS DESIGN with USA patent and trade Mark Office Since 2004 under patent No.US D560, 697". Thus, the appellants have already obtained the design registration in USA, and thereby the said copyright in design is capable of being registered under Page 17 of 40 HC-NIC Page 17 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT the Design Act and therefore, Section 15 is clearly applicable in the present case. Therefore, by producing the Design application, the appellants, by hook and crook is trying to prove that the same is for patent and makes erroneous and false statements, thereby misguiding and misleading the Hon'ble Court. Moreover, once the appellants have obtained a design registration from a convention country, to secure its rights in India, the appellants has to comply with the mandatory provisions of Section 44 of the Design Act, 2000. In the present case, the appellants have failed to do so and as a result whereof, the appellants have deliberately filed a suit under the Copyright Act suppressing the said material fact before the Hon'ble Court.
C. The appellants admitted the fact in the plaint, more specifically in para 15 of the plaint that they have sale loaders/ receivers and are manufacturing approx 1,200 loaders/receivers per year and sale the said articles and in support of same, also produced its invoices. In view of the above facts and admission, it is admitted by the appellants that they have sold the actual article i.e. loader and receiver. Thus, it is clear that Section 15 (2) of the Copyright Act, 1957 plays a vital role in the present case. As per Section 15 (2) of the Copyright Act, 1957 the Copyright shall cease as soon as any article to which design has been applied, has been reproduced more than fifty times. In the present matter, indisputably after applying the design, the loader/receiver has been manufactured approx 1200 times per year. Therefore, it is clear that the entitlement of a copyright owner in an artistic work/drawing/design is lost once an article is produced more than 50 times using the drawing/design as means of an industrial process. Once the copyright is lost under Section 15 of the Copyright Act, Section 14 (c) of the Act cannot be read so as to reconfer a copyright in an artistic work although the same is lost by virtue of Section 15 of the said Act.
Page 18 of 40HC-NIC Page 18 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT Furthermore, once the appellants, having admitted that they are manufacturing approx 1,200 loaders/receivers per year, within the meaning of Section 15 (2), they are no longer entitled to enjoy the rights over the same. Therefore, the present suit is clearly barred by the law.
D. Furthermore, the article of the appellants must have been manufactured by an industrial process. The appellants himself has admitted that it is the product/article in question is actually machine/ loader and the appellants themselves compares the final product i.e. machine/article with the respondents' machine/article. Moreover, the brochures relied on by the appellants are also depict the actual machine and not any artistic work. The appellants also rely upon the sales invoices, which clearly show that only the actual machines/ articles have been sold by them. The meaning of "copyright" as defined in Section 14 (c) of Copyright Act, 1957 runs as under :
14. Meaning of Copyright : For the purposes of this Act, "copyright" means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely :
(c) in the case of an artistic work, :
(i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work;
(ii) to communicate the work to the public;
(iii) to issue copies of the work to the public not Page 19 of 40 HC-NIC Page 19 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT being copies already in circulation;
(iv) to include the work in any cinematograph
film;
(v) to make any adaptation of the work;
(vi) to do in relation to an adaptation of the
work any of the acts specified in relation to
the work in subclauses (i) to (iv);
And the word "Artistic Work" is defined under
Section 2 (c) of the Copyright Act, 1957 as
under :
2 (c) "Artistic work" means
:
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. a [work of architecture]; and
iii. Any other work of artistic craftsmanship;
Moreover Section 2 (d) of the Design Act, 2000
runs as under :
"Design" means only the features of shape,
configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by an industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article Page 20 of 40 HC-NIC Page 20 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of subsection (1) of Section 2 of the Trade and Merchandise Marks Act, 1958 or property mark as defined in Section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of Section - 2 of the Copyright Act, 1957 ;
"Artistic work" means : i. a painting, sculpture, a drawing (including a diagram, map, chart or plan), and engraving or photograph, whether or not any such work possesses artistic quality.
ii. a [work of architecture]; and
iii. Any other work of artistic craftsmanship;
This definition has a very wide connotation as it is not circumscribed by any limitation of the work possessing any artistic quality. Even an abstract work, such as a few lines or curves arbitrarily drawn would qualify as an artistic work. It may be two dimensional or three dimensional. The artistic work may or may not have visual appeal.
When the appellants' artistic work reproduces the same in another material form, he may, or may not do so by employing an industrial process or means which may be manual, mechanical or chemical, separate or combined. If the reproduction of the original artistic work is done by the appellants, as an industrial process/article, the same results in a finished Page 21 of 40 HC-NIC Page 21 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT article which appeals to the eye as adjudged solely by the necked eye. The features of shape, configuration, pattern, ornament or composition of lines or colours applied to the article by the industrial process constitutes a "design", within the meaning of this expression as defined under the Designs Act. Therefore, the said design does not describe an artistic work within the definition of Section 2 (c) of the Copyright Act. Moreover, the second of the two categories of artistic works are those works, which to begin with, were not put to industrial application and would be covered under the ambit of Section 2 (c) of the Copyright Act. Further, if such an artistic work is put to industrial use as defined in Section 15 (2) by the industrial application of 50 replications, it then loses its copyright protection and no protection is then available to such artistic work under the Copyright Act. Such extinguishment of copyright protection under Section 15 (2) of the Copyright Act, once applied to a final product as a design, whether through the conversion of a drawing into a two dimensional product or the conversion of drawing to moulding, eventually resulting in three dimensional product, nevertheless, does not provide any copyright protection to the intermediate stages such as drawing/painting/moulding.
Furthermore, the appellants are entitled to produce three dimensional or two dimensional articles by use of the designs/drawings because of the rights of the appellants in the machine and the drawings/designs from which the machine is made and that appellants are not barred under Section 15 of the Copyright Act. However, there is no substance whatsoever in this because Section 14 (c) deals with an entitlement of a person who is the owner of the copyright because of existence/continuation of existence of the copyright in the artistic work, but, Section 15 (2) makes it clear that the entitlement of a copyright owner in an artistic work/drawing/design is lost, once, an article is produced more than Page 22 of 40 HC-NIC Page 22 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT 50 times by means of an industrial process, using the drawing/design. Once the copyright is lost under Section 15 of the Copyright Act, Section 14 (c) of the Act cannot be read as to reconfer a copyright in an artistic work although the same is lost by virtue of Section 15 of the said Act.
In view of the above facts and circumstances, it is an admitted position that the appellants' alleged copyright falls under the Design Act, as per provision 2 (c) and not the copyright act. Moreover, the appellants himself, having obtained the design registration in USA and not following the mandatory requirements of Section 44 of the Design Act, 2000 and also having made false and bogus claims under the copyright which is not at all available to the appellants, it is clear that the appellants obtained Design registration in US and it is admitted position of the appellants that appellants are manufacturing the loader machine and the said drawings were applied for the design by the appellants. Thus, said design is capable of being registered under the Design Act in India, but the appellants have failed to register the Designs. Therefore, impugned product i.e. loader/receiver is defined as an ARTICLE under the provision of the Designs Act, 2000. Therefore, it cannot be the artistic work under the Copyright Act as alleged by the appellants. The said loader/receiver does not covered under the definition of the artistic work within the definition of Section 2 (c) of the Copyright Act, 1957. Therefore, and also of the present suit is barred by law.
On this ground, the respondents rely upon the following authorities.
(i) 2009 (40) PTC (DEL) (Division Bench) Microfibers Inc. V/s. Girdhar & Co. relevant paragraphs para 20, onwards till the end of the judgment.
(ii) 2006 (32) PTC 157 (Del.) Microfibers Inc. Page 23 of 40 HC-NIC Page 23 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT V/s. Girdhar & Co. relevant paragraphs para 38, onwards till the end of the judgment.
(iii) 2011 (47) PTC 168 (Guj) - Sun Textiles Engineers & Ors. V/s. State of Gujarat & Anr. Head Note, paragraphs 2, 8 and 9.
(iv) 2005 (31) PTC 172 (Guj) (Division Bench), Devendra Somabhai Naik V/s. Accurate Transheat Pvt. Ltd.--relevant paragraphs -
head note, para 5 onwards till the end of the judgment.
(v) 2014 (59) PTC 149 (Del.) Jagdamba Impex V/s. Tristar Products, relevant paragraphs - para 8 onwards till end of the judgment.
(vi) GLR Vol. L (3) page 2688, Binita Rahul Shah & Ors V/s. State of Gujarat, relevant paragraphs--para 12 onwards till the end of the judgment.
(vii) 2011 (8) SCC 249 held that it is high time that in frivolous litigation, exemplary and actual costs must be imposed.
The plaint also does not disclose a real and genuine cause of action. In fact no cause of action has ever arisen to warrant filing of the suit against the respondents. The respondents submit that: E. In the present suit, there is no averment of artistic work in existence at all as per the provisions of the Copyright Act. Indeed, the appellants obtained design registration from USA and are trying to establish its right and monopoly over the alleged copyright which is not available to the appellants and therefore, there is no cause of action. Hence, the suit is not at all maintainable.Page 24 of 40
HC-NIC Page 24 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT F. Furthermore, on one hand while the appellants, in the prayer clause, talks about the artistic work, on the other hand, a meaningful reading of the plaint itself suggests that the appellants are comparing their final article/produce with the respondents' article/product. The appellants are not clear about the categorization of their artistic work and therefore there is no actual cause of action having arisen. Moreover, upon the meaningful reading of the plaint, it is found that the entire claim of the appellants for an article i.e. design falls within the meaning of Section 2 (d) of the Design Act and does not fall under the Copyright Act. As the artistic work in Section 2 (c) of the Copyright Act is totally different from the copyright mentioned in Section 15 (2) of the Copyrights Act. Moreover, a meaningful reading of the entire plaint reveals that the claim of the appellants for the product falls under the provisions of Section 2 (a) (c) and
(d) of the Designs Act and not under Section 14 of the Copyright Act as claimed by the appellants. Therefore, after considering the said provisions and facts of the case, with a meaningful reading of the plaint, there is no cause of action made out by the appellants and so the suit is barred by the law.
G. The respondents rely upon the paragraphs of the plaint, on meaningful reading of which, it emerges that the same is manifestly vexatious and deprived of merits in the sense that it does not disclose a clear right to file the present suit. The appellants address about design and machine/article and not for any artistic work. The respondents, for these contentions, relied upon para nos.4, 5 last part of paragraph 6, 7, 9, 13, 14, 15, 22, 25 and prayer clause 28 of the plaint. The respondents submit that on a meaningful reading of the said paragraphs, it is revealed that it talks about the artistic work as design installation of loader/receiver, reputation of the product comparison of the actual product with the respondents', Page 25 of 40 HC-NIC Page 25 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT wherein it is clear that the claims are only and regarding Design and not for Copyright. Moreover, the appellants themselves had applied for the said shape or configuration of loader/receiver under the protection of Design in USA and also sold the said machines in the market. Therefore, the suit is not for the alleged infringement of copyright and there is no cause of action. Hence, the suit is not at all maintainable. Therefore, the order passed by the Ld. Trial Court is speaking, on merits and according to the provisions of law.
H. The appellants have no clear right to sue, for the alleged copyright. The suit based on such false claim, is nothing but a clear case of "abuse of the process of law" and the appellants have not disclosed "a clear right to sue" and also not disclosed "the real cause of action". As per the averments of the plaint and the documents relied on by the appellants, the appellants have obtained the same artistic work under Patent Design in USA. It is submitted that the Design being a territorial right, its registration in India is must and mandatory under the provision of Section 44 of the Designs Act, 2000. The appellants are not having any registration of Design under the Indian Design Act. Furthermore, the appellants have deliberately and wrongly filed the suit for infringement of copyright. Therefore, there is no clear and genuine cause of action made out by the appellants and it is only a case of clever drafting creating an illusion of a cause of action which has to be nipped in the bud. Therefore, the suit is of the appellants is rightly rejected as per the provisions under Order 7 Rule 11 (a) and (d) of the Code of Civil Procedure, 1908. The respondents humbly submit that the plaint otherwise also does not disclose any real and reasonable cause of action for the alleged claim of artistic work. So, the appeal requires to be rejected summarily in the fair play of justice.
For this ground the respondents relied upon the following Page 26 of 40 HC-NIC Page 26 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT authorities.
(i) Kusum Ingots and Alloys Ltd., V/s. Union of India reported in AIR (SC) 2004 (0) 2321 Relevant paragraph - 4.
(ii) Alka Gupta V/s. Narendra Kumar Gupta
reported in AIR (SC) 09 relevant
paragraph no.8.
(iii) Church of Christ Charitable Trust V/s.
Ponniamman Educational Trust, reported
in AIR (SCW) 2012 page 4136, relevant
paragraphs - 3, 4, 5, 8, 10.
(iv) Soumik Sil V/s. Subhas Chandra Sil
reported in AIR 2014 SC 1931.
(v) AIR 1977 SC 2421 - relevant paragraph
nos.5 to 7.
I. The respondents also submit that none of the appellants are the
true and correct owner of any copyright work and/or any intellectual property right as alleged more specifically as per paragraphs 1, 2, 3, and 7l of the plaint and the documents relied by the appellants. The respondents also submits that appellants has not come with the clean hands before the Hon'ble Court and the documents relied by them is also playing the fraud upon the Hon'ble Court. The documents relied by the appellants does not reflect any copyright and/or any intellectual property rights being transferred as alleged. The respondents submit that the appellants have alleged that the appellant no.3 is a joint venture with the appellant no.1 through the appellant no.2. The respondents submit that it is merely vague and a bogus averment without any supporting documents to this effect. The appellants have relied upon the documents which do not support there owns averments/pleadings. The appellants themselves have pleaded in the plaint Page 27 of 40 HC-NIC Page 27 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT in para 25 that Doug Boring and V Pitchford are the authors of some alleged artistic work. The appellants have failed to show how the said artistic work is transferred to the any of the present appellants. The respondents also submit that the appellants have failed to show the link between all the three appellants. The respondents also submits that the license agreement is of 05/08/2007 whereby the Conair company is giving license to appellant no.3 and as per the documents relied by the appellants about the incorporation of the joint venture is after the license agreement therefore also all documents are completely fraud and therefore the appellants have not come with clean hands.
J. The appellants relied on the following judgments and the same is not applicable to the present subjectmatter. The said is distinguished by the appellants.
1. First Appeal No.1980 of 2015 between Virbac Health India Pvt. Ltd., V/s.
Dahabhai Patel - The fact of the said appeal involve the question of trademark and the prayer of the said plaint reflect the word pass of the goods. The said fact is reflected in the said first appeal vide order dated 29/10/2015. The said fact is not present in the plaint filed by the present appellants.
2. Midas Hygiene Industries Pvt. Ltd., V/s.
Sudhir Bhatia, reported in 2015 (64) PTC 366 (Del) (DB) - The question herein was comparison of two labels and art work to the label. The appellants in the present case compare two article/finished product i.e. loader and receiver. Therefore, it is not applicable to the present fact of the case. In fact para 20 to 30 of this judgment is in favour of the respondents. In fact the judgment relied in the said case being AIR Page 28 of 40 HC-NIC Page 28 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT 2008 SC 2520 in Bharat Glass Tube V/s.
Gopal Glass Works Ltd., is applicable to the respondents.
3. 2014 (0) AIJTN Standard Corporation India Limited V/s. Tractors and Farm Equipment Limited. In the present case the Trademark Act, 1999 was also there and the product passing off was also involved.
This was not the case of the present appellants. In fact this judgments confirms the principle set out in Microfiber's judgment of Hon'ble Division Bench of Delhi High Court and applicable to the respondents.
4. OJ Appeal No.32 CS No.2 of 2015 between Win Plast Limited V/s. Symphony - The entire fact was pertaining to article as per Design Act and there was no question of artistic work as per the Copyright Act.
5. SLP No. 22113 of 2014 between TRStars Products Pvt. Limited V/s. M/s. Jagdamba Impex - the Hon'ble Apex Court reminded back the matter on the ground that the Hon'ble High Court cannot dismissed the suit under section 39 rule 1 & 2. Therefore, the principle laid down by the Hon'ble Delhi High Court is in favour of the respondents.
6. 2009 (30) PTC 609 (Bom) Indiana Gratings Pvt. Ltd., V/s. Anand Udyog Fabricators Pvt. Limited & Ors. The fact of this case was pertaining to the drawings, the defendants herein were using sketches.
In fact the appellants herein are comparing the actual machine and therefore, it is not applicable to the present case.
7. 2014 (60) PTC 563 (Bom) between Photoquip India Limited V/s. Delhi Photo Store - The fact of the present case clearly distinguish the article and the artistic work Page 29 of 40 HC-NIC Page 29 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT as reflected in para 23, 26, 27, 32, 34.
Therefore, the said is not applicable to the present case.
K. The learned judge has exercised reasonable and in a judicial manner and therefore, the said appeal is required to be dismissed with cost. The learned trial Court while passing the order and dismissing the suit and after considering all the documentary evidence on record has rightly considered the following issue.
1. There is no artistic work at all in existence as per the Copyright Act in the entire suit and therefore, there is no cause of action and the suit is therefore, barred by law.
2. That after meaningful reading of the plaint the appellants have talked about the article / product, produces all documents about the actually machine and compared the actual machine.
3. That the appellant himself has applied for the Design and therefore, it cannot be artistic work as alleged by the appellants.
4. That the plaint in the suit clearly makes statements suggesting the reproduction of the loader/receiver by way of industrial process more than fifty times and thereby bar the present suit on account of mandate under subsection 2 of the section 15 of the Copyright Act, 1957.
5. The learned Judge has right concluded that none of the averments and pleadings in the plaint are pertaining to any artistic work but the appellants have actually compared the machine i.e. article/finished product of the appellants with the respondents' product/article.
Page 30 of 40HC-NIC Page 30 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT In view of the aforementioned facts, circumstances and documents as relied upon and also in light of the authorities/judgments as cited by and on behalf of the respondents herein, it is nothing but the clever drafting and therefore, no cause of action has arisen and therefore, also it is barred by law and the order passed by the learned trial Court is true and correct and the First Appeal filed by the appellants is required to be dismissed with and a suitable amount of costs and/or strictures may also kindly be awarded and passed against the applicants to uphold the dignity of law, truth and pure jurisdiction of equity before this Hon'ble Court".
22. The principle enunciated for deciding the application under Order7 Rule11 of C.P.C. are as follows.
11. Rejection of plaint. The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;Page 31 of 40
HC-NIC Page 31 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT
(e) where it is not filed in duplicate;
(f) where the plaintiff fails comply with the provision of Rule 9.
Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.
23. The main ingredients, which are required to be seen are as follows : "[245] - Or. 7 R. 11 - Rejection of plaint -
Power conferred under Or. 7 R. 11 CPC in respect of - Is of drastic nature - Conditions precedent to exercise of said power are stringent
- Relevant considerations while exercise of that power - Reiterated - While exercising of power under Or. 7 R. 11 CPC, only the averments in plaint have to be read as a whole - Stand of defendants in written statement or in application for rejection of plaint is wholly immaterial at that stage - Plaint can be rejected only if the averments made therein exfacie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law - In present case, plaintiffs how were living abroad, reposing trust and faith in Defendants 1 and 2 (i.e. sister and brotherinlaw of Plaintiff 1) and making funds available to them to purchase immovable properties in India in name of Plaintiff 2
- As regards first property identified to be purchased and in respect of which an agreement for sale was executed, defendants informing plaintiffs that owner N resiled from said agreement and there was requirement to file suit for specific performance - Subsequently, plaintiffs getting knowledge in Page 32 of 40 HC-NIC Page 32 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT November/December 1999 that though suit for specific performance filed by defendants was decreed, sale deed was executed in name of Defendant 4 (i.e. brotherinlaw of Defendant 1) - As regards second property identified to be purchased (which belonged to one B), it transpired that said property was purchased jointly in name of Plaintiff 2 and Defendant 3 (i.e. son of Defendant 1) - Plaintiffs getting knowledge of said sale deed in year 1999 - In these circumstances, two separate suits filed by plaintiffs (i.e. appellants herein) in year 2002 for declaration of title, possession, cancellation of sale deed, etc. in relation to those immovable properties - Reading the plaint as a whole and proceeding on the basis that the averments made therein were correct, it could not be said that pleadings of those suits ex facie disclosed that said suits were barred by limitation or any other provision of law or that they did not disclose a cause of action - Hence, impugned orders of High Court allowing defendants' applications under Or. 7 R. 11 CPC (pertaining to said suits) by reversing trial court's order, held, not proper - Consequently, set aside - Plaints in both suits, restored (Paras 5 to 9 and 12)."
24. Against the aforesaid factual backdrop, as well as rival contentions of the parties, this Court is calledupon to examine the order dated 27th August 2015, wherein the learned Trial Court has rejected the plaint in exercise of powers under Order 7 Rule 11 of C.P.C.
25. The purport and purview of Order 7 Rule 11 is eloquently clear as in case where the plaintiff does not disclose a cause of action, where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so, where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so, where the Page 33 of 40 HC-NIC Page 33 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT suit appears from the statement in the plaint to be barred by any law, where it is not filed in duplicate, where the plaintiff fails to comply with the provision of Rule 9.
26. In the instant case, the appellants have attempted to make submission for wrigglingout of the rigors of Section 15 (2) of the Copyright Act, 1957 by inviting Court's attention to the change of scenario under the provision as it stood prior to 31st June 2012. The emphasis was placed upon the all artistic work as defined under Section 2 (c) of the Copyright Act, 1957 and it was urged that being a case of cause of action from the definition of design, the bar of law as sought to be pleaded on behalf of the defendants was not available. We are of the considered view that the said submission though appears to be attractive, is on close perusal of the facts and provision of law would be not available, as otherwise it would amount to inducing a factum of art work where it is none. Admittedly, the product in question is said to be copyright on account of its shape so as to take it out from the rigors of the Section 15 (2) of the Copyright Act. The artistic work, merely by calling it an artistic work would not be sufficient to nullify the provision and statutory bar else, it would be remedy available to all. We are of the view that the learned counsel for the respondents is justified in submitting that the plaint is nothing but a clever piece of drafting so as to indicate a cause of action and taking it out of the rigors of statutory bar embedded in the Copyright Act.
27. Learned counsel for the respondents is also justified in raising a contention based upon the provision of Section 52, which has been reproduced hereinabove in paragraph no.19.
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28. The decision cited at the bar on behalf of the appellants also would not indicate in any manner that the case of the appellants would not hit by the provisions of Section 15 (2) of the Copyright Act. Section 2, would not indicate that the copyright enure in the design so as to lay a claim on that basis.
29. We are also of the considered view that the learned counsel for the respondents, is justified in contending that by merely comparing the actual machine i.e. the article and fine product would not ipso facto amount to say that the same is infringement of Copyright. The undisputed aspect that the appellants have admitted that they have produced more than 1200 loaders/receivers per year and sell, then the same in itself would militate against their submission in light of the provision of Section 15 (2) of the Copyright Act, 1957.
30. The learned counsel appearing for the respondents, is also justified in inviting Court's attention to the definition of Section 2 (c) of Artistic Work, which has been exclusively referred hereinabove in this judgment. The decision cited at the bar on behalf of the respondents, would also indicate that how the plaint was hit by the provisions of Section 15 (2) of the Copyright Act and rightly rejected under order dated 27th August 2015.
31. The learned counsel for the respondents justified in contending that even an abstract work, such as a few lines or curves logically drawn would qualify as an artistic work. The artistic work may or may not have visual appeal. When the appellants' artistic work reproduces the same in another material form, he may, or may not do so by employing an industrial process or means which may be manual, Page 35 of 40 HC-NIC Page 35 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT mechanical or chemical, separate or combined. If the reproduction of the original artistic work is done by the appellants, as an industrial process/article, the same results in a finished article which appeals to the eye as adjudged solely by the necked eye. The features of shape, configuration, pattern, ornament or composition of lines or colours applied to the article by the industrial process constitutes a "design", within the meaning of this expression as defined under the Designs Act. Therefore, the said design does not describe an artistic work within the definition of Section 2 (c) of the Copyright Act.
32. The learned counsel for the respondents also justified in submitting that it is an admitted position that the appellants' alleged copyright falls under the Design Act, as per provision 2 (c) and not the Copyright Act. Moreover, the appellants themselves, having obtained the design registration in USA and not following the mandatory requirements of Section 44 of the Design Act, 2000 and also having made false and bogus claims under the copyright which is not at all available to the appellants. It is clear that the appellants obtained Design registration in US and it is admitted position of the appellants that appellants are manufacturing the loader machine and the said drawings were applied for the design by the appellants. Thus, said design is capable of being registered under the Design Act in India, but the appellants have failed to register the Designs. Therefore, impugned product i.e. loader/receiver is defined as an "article" under the provision of the Designs Act, 2000. Therefore, it cannot be the artistic work under the Copyright Act as alleged by the appellants. The said loader/receiver is not covered under the definition of the artistic work within the definition of Section 2 (c) of the Copyright Act, 1957.
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33. This Court feels that there is a justification in the submission of the learned counsel for the respondents, that there is no cause of action and the suit is not maintainable as in the suit, there is no averment of artistic work at all as per the provisions of the Copyright Act. Indeed, the appellants obtained design registration from USA and are trying to establish its right and monopoly over the alleged copyright which is not available to the appellants. Further, the appellants are not clear about the categorization of their artistic work and therefore there is no actual cause of action having arisen.
34. It is rightly submitted by the learned counsel for the respondents, that upon meaningful reading of the plaint, it is found that the entire claim of the appellants for an article i.e. design falls within the meaning of Section 2 (d) of the Design Act and does not fall under the Copyright Act, as the artistic work in Section 2 (c) of the Copyright Act is totally different from the copyright mentioned in Section 15 (2) of the Copyrights Act.
35. Learned counsel for the respondents also justified in submitting that a meaningful reading of the entire plaint reveals that the claim of the appellants for the product falls under the provisions of Section 2 (a) (c) and (d) of the Designs Act and not under Section 14 of the Copyright Act as claimed by the appellants. Therefore, after considering the said provisions and facts of the case, with a meaningful reading of the plaint, there is no cause of action made out by the appellants and so the suit is barred by the law.
36. There is a justification in the submission of learned counsel for the respondents that the appellants address about design and Page 37 of 40 HC-NIC Page 37 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT machine/article and not for any artistic work. For this, the respondents, relied upon para nos.4, 5 last part of paragraph 6, 7, 9, 13, 14, 15, 22, 25 and prayer clause 28 of the plaint and submitted that, upon going through the said paragraphs, it is revealed that it talks about the artistic work as design installation of loader/receiver, reputation of the product comparison of the actual product with the respondents', wherein it is clear that the claims are only and regarding Design and not for Copyright. The appellants themselves had applied for the said shape or configuration of loader/receiver under the protection of Design in USA and also sold the said machines in the market. Therefore, the suit is not for the alleged infringement of copyright and there is no cause of action. Hence, the suit is not at all maintainable.
37. The submission, of the learned counsel for the respondents requires justification, that the appellants have no clear right to sue, for the alleged copyright. The suit based on such false claim, is nothing but a clear case of "abuse of the process of law" and the appellants have not disclosed "a clear right to sue" and also not disclosed "the real cause of action". As per the averments of the plaint and the documents relied on by the appellants, the appellants have obtained the same artistic work under Patent Design in USA. It is submitted that the Design being a territorial right, its registration in India is must and mandatory under the provision of Section 44 of the Designs Act, 2000. The appellants are not having any registration of Design under the Indian Design Act. The appellants have deliberately and wrongly filed the suit for infringement of copyright. Therefore, there is no clear and genuine cause of action made out by the appellants and it is 0only a case of clever drafting creating an illusion of a cause of action which has to be nipped in the bud. Therefore, the suit of the appellants is rightly rejected as per the Page 38 of 40 HC-NIC Page 38 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT provisions under Order 7 Rule 11 (a) and (d) of the Code of Civil Procedure, 1908.
38. The submission, of the learned counsel for the respondents, require to be accepted, that the appellants have relied upon the documents which do not support their own pleadings. As the appellants themselves have pleaded in the plaint in Para25 that Doug Boring and V Pitchford are the authors of some alleged artistic work. The appellants have failed to show how the said artistic work is transferred to any of the present appellants. That the appellants have failed to show the link between all the three appellants. That the license agreement is of 05/08/2007 whereby the Conair company is giving license to appellant no.3 and as per the documents relied by the appellants about the incorporation of the joint venture is after the license agreement therefore also all documents are completely deception.
39. The learned counsel for the respondents, is justified in submitting that the learned judge has exercised in a judicial manner and therefore, the said appeal is required to be dismissed with costs. The issues considered by the learned trial Court while passing the order and dismissing the suit after considering all the documentary evidence on record, need not require any interference of this Court.
40. In view of the above discussions, we are of the considered view that the judgment dated 27th August 2015 passed by the the 7th (Adhoc) Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur in Trade Mark Suit No. 1 of 2015 does not require to be interfered with in any manner. Therefore, in the result, the appeal fails and the same is dismissed. However, there shall be no order as to costs. Notice Page 39 of 40 HC-NIC Page 39 of 40 Created On Sat Apr 09 02:53:33 IST 2016 C/FA/2372/2015 CAV JUDGMENT discharged.
41. In view of the order passed in the main matter being First Appeal No. 2372 of 2015, no orders in civil application and the same is disposed of.
(S.R.BRAHMBHATT, J.) (K.J.THAKER, J) Rathod...
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