Delhi District Court
State vs Mohinder on 22 September, 2009
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE04 (NORTH) : DELHI
CR No.27/08
In the matter of:
State .....Revisionist.
Verses
1. Mohinder Kumar,
S/o Sh. Prem Chand,
R/o 590A, Malka Ganj Road,
Delhi - 110007.
2. Sanjeev Sehgal,
S/o Sh. Surinder Nath Sehgal,
R/o 20/29 Old Rajender Nagar,
Delhi.
3. Sanjeev Kumar,
S/o Prem Chand,
R/o 590A, Malka Ganj Road,
Delhi - 110007.
4. Puran Chand,
S/o Sh. Tota Ram,
R/o H. No.7214,
Gali Teliyan Pahari Dhiraj,
Sadar Bazar, Delhi. .....Respondents.
J U D G M E N T
1. Aggrieved by the order dated 17.02.2001 passed by the then Ld. ACMM,Delhi in case bearing FIR No.291/00 titled as State Vs. Mohinder Kumar & Others U/s 63/65 Copy Right Act PS Subzi Mandi, whereby State Vs. Mohinder & Ors (CR No. 27/08) Page No. 1 of pages 14 while declining taking of cognizance of the case, all the accused persons (respondents herein) were discharged of the allegations, the State (revisionist herein) has preferred the present revision petition through Ld. Addl. PP on 02.05.2001 interalia praying for setting aside the said order and for disposal of the case on merits.
2. Factual matrix of the case relevant for the purpose of disposal of the present petition are that one Rahat Khan, Proprietor of M/s Kohinoor Tin Industries, preferred a complaint to the crime branch to the effect that he was engaged in manufacturing and sale of steel bhutt hinges and had adopted trade mark "Lion" in respect of the goods manufactured by him. It was also alleged that goods under the trade mark "Lion" was being marked by him in a wrapper, which were kept in a carton having a unique colour combination, get up, way out and arrangements, which is registered under the provisions of Copy Right Act. Complainant also alleged that he was also using trade mark "Tiger" in a similar carton of same colour and same artistic work. It was claimed that by influencing with the popularity of the trade mark and artistic cartons of the complainant, many a traders had tried to infringe and/or abet the infringement of the copy right belonging to the firm of the complainant State Vs. Mohinder & Ors (CR No. 27/08) Page No. 2 of pages 14 and had also falsified the trade marks belonging to the firm of the complainant. He added that the persons having falsified the trade marks LION, TIGER, HERO, SONI, TITAN, PREM, SHAKTI, MANOJ and very other deceptively similar and identical marks. They had not only falsified the trade marks but had also applied the same to the goods of their manufacture and sale to earn profits and illegal manner by causing confusion and deception and by passing off there goods as and for the goods of his manufacture. It was added that the marks HERO, SONI, TITAN, PREM, SHAKTI, MANOJ, TIGER AND LION were deceptively similar to the trade mark LION and TIGER to the complainant. As such, the accused had thus committed offences punishable U/s 63 of Copy Right Act and Section 78 & 79 of Trade and Merchandise Mark Act. It was also claimed that the steel butt hinges as well as cartons being used by the accused persons for the manufacture and also of their goods under the false trade marks packed in similar cartons were nothing but a substantial reproduction of all the artistic features of the cartons of the complainant titled LION and TIGER. Each and every essential feature of his cartons including its get up, layout, colour combination, arrangements, placement of matters and the style of representing the State Vs. Mohinder & Ors (CR No. 27/08) Page No. 3 of pages 14 mark HERO, SONI, TITAN, PREM, SHAKTI and MANOJ have been reproduced constituting infringement of copy right punishable U/s 63 of the Copyright Act. As such the complainant preferred the complaint before the Crime Branch. Following the complaint, a raid was conducted by the Officials of Crime Branch at factory cum resident at 590A, Malka Ganj Raod, Delhi7, where the accused Mohinder Kumar was found present and arranging/counting packets of hinges bearing infringing artistic work of the complainant and after premises were searched, 600 packets filled each containing 12 hinges bearing infringed artistic copy right work of complainant company were recovered. It was also alleged that further search of the premises led to the recovery of 18700 empty card board boxes bearing the same infringed artistic copy right of the complainant and pursuant to disclosure statement made by accused Mohinder, another 266 filled packet of hinges were recovered from the shop of the accused Sanjeev Sehgal i.e. from Shop no.6/94142, M/s Peshawar hardware Store, Lal Kuan, Delhi. From the further investigation, it was transpired that two industries namely M/s Manoj Industries and M/s Prem Industries Corporation were being run by accused Prem Chand and his sons Mohinder Kumar and Sanjeev State Vs. Mohinder & Ors (CR No. 27/08) Page No. 4 of pages 14 Kumar. Accused Puran Chand was found to be the printer by whom the infringed card board boxes were printed. All the above mentioned articles were sealed with seal of SKY and taken into police possession through seizure memo. Then, the FIR was registered on the basis of the complaint and the investigation was taken up by SI Sushil Kumar, who during the course of investigation prepared site plan. Statements of the witnesses were recorded and then after completion of investigation, the charge sheet was presented for trial.
3. Then, after hearing the arguments, vide the impugned order dated 17.02.2001 all the accused persons were discharged of the charges leveled against them, to which the petitioner is impugning in the present petition on the following grounds:
(i).Ld. Trial Court failed to appreciate the legal position that Trade Mark of complainant "LION/TIGER" is registered under the Trade Mark Act and also under copy Right Act No.A49316/88 and also under T.M.M. Act.
(ii).Ld. Trial Court failed to consider that word Lion and Tiger stickers pasted on packing kits in a particular artistic design and complainant has copy right in artistic design of TIGER/ LION and the complainant company is owner of copy right on kits etc. which is an original artistic work exists with in the State Vs. Mohinder & Ors (CR No. 27/08) Page No. 5 of pages 14 meaning of copy right act.
(iii).Complainant company has acquired goodwill and reputation among public and trade in respect of its trade mark and copy right i.e. "LION/TIGER" artistic design and complainant company has legal, vested and statutory right to the exclusive use of the trade mark on packing kits and spending lot of money in advertisement of its trade mark and copy right to prevent its infringement.
(iv).The infringed packing kits were recovered from accused with falsified trade mark "LION/TIGER" and there exist copy right in artistic design of LION/TIGER in favour of complainant as per copy right act. Infringed packing kits with falsified trade mark LION/TIGER is identical and deception similar to that of the complainant and said illegal trade of respondent/accused are earning illegal profit and are also causing imputable loss and injury to the complainant firm's goodwill in the eye of the prospective customers.
(v).It is also added that at the time of consideration of charge, the court has to see only that there are sufficient material on recored to prove against accused and not the materials which requires for conviction.
4. As per submissions made on behalf of the revisionist, the Trial Court has gravely erred in holding that only a non cognizable offence is made out from the facts of the case. Since the allegations of selling spurious State Vs. Mohinder & Ors (CR No. 27/08) Page No. 6 of pages 14 goods were also made, so it can not be said that a cognizable offence is not made out withing the meaning of Sec.63 of Copyright Act, the infringement being withing the ambit of Sec. 51 (b) of the Copyright Act. By selling of spurious goods, the intentions of the respondents was to derive economic benefits for himself through false representation. The copyright is an intellectual property and the law confirms the exclusive right upon the owner. It is also added that at the stage of taking cognizance/or framing charge, the court is not to consider the evidence in details, rather, only averments made in the challan is to be considered to see that there is a prima facie case made out for framing of charge. The material on record fully established that cognizable offence is committed which warrants trial by court.
Per contra, according to Ld. counsel for the respondent the instant petition as filed by the revisionist contains no substance as there is no infirmity or illegality in the impugned order passed by Ld. Trial Court. Since it is not in disputed fact that the printed card board boxes are mechanically produced, therefore, no offence is made out U/s 63/64 of Copyright Act. No artistic work is subsist in the printed cartons, so it is not covered within the definition of artistic work as provided U/s 2 (c) of State Vs. Mohinder & Ors (CR No. 27/08) Page No. 7 of pages 14 the Copyright Act. It is no doubt clear that the accused parties were using a different brand name. The design was different and as such and as a matter of fact it was the subject matter of the design of the carton. Copyright therefore, ceased to exist and the said design of the product has already been reproduced more than 50 times by the industrial process and as such no copyright subsists in the design of the packing. Since there is no original art work produced by the complainant nor mentioned in the revision petition and further nothing has been said about the owner and author of the artistic work, so no offence is made out under Copyright Act. AS regards to offecne U/s 78 & 79 of Trade and Merchandise Marks Act since they are non cognizable offence, so the trial court has right refused to take cognizance and held that prosecution is vitiated.
5. I have carefully heard the submissions made before me. I have also perused the entire material placed on record particularly the impugned order, the contents of the revision petition specially the grounds taken therein as well as the record summoned from the Trial Court.
6. The Trial Court has discharged the accused persons on two grounds: State Vs. Mohinder & Ors (CR No. 27/08) Page No. 8 of pages 14
(a). the offence U/s 78 & 79 of Trade and Merchandise Mark Act are non cognizable offences and before taking the investigation of the case, the police had not obtained the permission of the court U/s 115 Cr.P.C.
(b). No offence U/s 63 & 64 of the Copyright Act is made out against the accused party as the printed cardboard involved are produced/ printed in mechanical manner.
7. What is required to be determined in this case is whether any copyright can exist in the subject matter in which the same is claimed. That is to say whether there is any copyright in the printed cartons in dispute.
In the instant revision petition, it has not been denied that the cartons are mechanically produced. It is also not in dispute that the offence U/s 78 & 79 of the Trade and Merchandise Mark Act is a non cognizable offence and the requisite permission U/s 155 Cr.P.C. has not been taken by the police in this case. As such, Ld. Trial Court has rightly refused to take the cognizance.
8. In order to determine whether copyright exists in the cartons, it is necessary to keep in view the legally accepted meaning of 'copyright'. In essence, in law, copyright means the exclusive right to make copies of State Vs. Mohinder & Ors (CR No. 27/08) Page No. 9 of pages 14 any copyrightable subject matter in any tangible material form.
Section 13 of the Copyright Act, 1957, which deals with subject matter of copyright reads as under:
13. Works in which copyright subsists. (1). Subject to the provisions of this section and other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say -
(a). Original literary, dramatic, musical and artistic works;
(b). cinematograph films; and
(c). records.
(2) Copyright shall not subsist in any work specified in sub section (1), other than work to which the provisions of section 40 or section 41 apply, unless -
(i).in the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication or in a case where the author was dead at that date, was at the time of his death, a citizen of India;
(ii).In the case of an unpublished work other than an are thitectural work of art, the author is at the date of the making of the work a citizen of India or domiciled in India; and
(iii).in the case of an architectural work of art, the State Vs. Mohinder & Ors (CR No. 27/08) Page No. 10 of pages 14 work is located in India.
Explanation. In the case of a work joint authorship, the conditions conferring copyright specified in this subsection shall be satisfied by all the authors of the work.
(3). Copyright shall not subsist -
(a). in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work;
(b). in any record made in respect of a literary dramatic or musical work, if in making the record, copyright in such work has been infringed.
(4). The copyright in a cinematograph film or a record, shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the record is made.
(5). In the case of an architectural work of art, copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction.
9. In this case, the printed cartons in question are mechanically printed products produced by a printing machine and as such they can not be termed as an original artistic work using skill of the artist with a paint a brush in addition of calligraphic skill. Since, the cartons had to be original artistic work in order to qualify of being covered under the copyright act, State Vs. Mohinder & Ors (CR No. 27/08) Page No. 11 of pages 14 rather, they are mechanically reproduced article, so this is not the case of the infringement of the copyright Act as provided U/s 63 & 64 of Copyright Act. As no artistic work subsist in the said printed cartons and the said artistic work on the cartons does not cover under Section 2 (c) of the Copyright Act which defines the artistic work. Further, section 15 of the Copyright Act reads as under: "Special provision regarding copyright in designs registered or capable of being registered under the Design Act, 1911 - (1) Copyright shall not subsist under this Act in any design which is registered under the designs Act, 1911 (2 of 1911).
(2) Copyright in any design, which is capable of being registered under the Design Act, 1911 (2 of 1911), but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright, or, with his licence, by any other persons."
10. In view of the aforesaid Section it is no doubt clear that the accused State Vs. Mohinder & Ors (CR No. 27/08) Page No. 12 of pages 14 persons were using a different brand name. The design was different and as a matter of fact it was the subject matter of design of carton. Copyright, therefore, ceased to exist as the said design of the product has already been reproduced 50 times by the industrial process by the owner of the copyright as alleged. Therefore, no copyright subsists in the design of the packing. Further, no original art work has been produced by the complainant nor mentioned in the revision petition and further noting is said about the owner and author of the artistic work and it is mandatory U/s 17 & 18 of Copyright Act to disclose the aforesaid above particulars to the court. In the absence of aforesaid details, there is no violation of Section 63 & 64 of Copyright Act. It is also not disputed that the carton in dispute under the design are reproduced by the industrial process. As such, this is not a fit case for interference in the findings arrived at by Ld. ACMM/Delhi vide the impugned order dated 17.02.2001.
11. In view of the aforesaid, I find no infirmity or irregularity in the impugned order dated 17.02.2001, resultantly, the present revision petition as filed by the revisionist is devoid of merits and accordingly the same is hereby dismissed.
State Vs. Mohinder & Ors (CR No. 27/08) Page No. 13 of pages 14
12. TCR alongwith the copy of the judgment be sent back to the Ld. Trial Court.
13. The revision file be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR) court today on 22.09.2009) ASJ04 (NORTH)/DELHI State Vs. Mohinder & Ors (CR No. 27/08) Page No. 14 of pages 14