Bombay High Court
Ranjan Vasudeo Kolambe vs Appa Alias Hanmant Maroti Hatnure And ... on 25 October, 2024
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
2024:BHC-AS:42759
Diksha Rane/KVM 3 - COMAO 14 OF 2024-HATNURE.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
COMMERCIAL APPEAL FROM ORDER NO. 14 OF 2024
WITH
INTERIM APPLICATION NO. 11266 OF 2024
IN
COMMERCIAL APPEAL FROM ORDER NO. 14 OF 2024
RANJAN VASUDEO KOLAMBE ..APPELLANT
VS
APPA ALIAS HANMANT MAROTI
HATNURE AND ANOTHER ..RESPONDENTS
Mr. Yateen Kochare a/w. Mr. M. V. Thorat, Mr. Atmaram Patade for the
Appellant/Applicant.
Mr. Abhijeet A. Desai a/w. Mr. Vijay Singh, Mr. Karan Gajra, Smt.
Daksha Punghera, Ms. Mohini Rehpade, Mr. Digvijay Kachare, Ms.
Sanchita Sontakke i/b. Desai Legal for the Respondents.
Coram : A. S. Chandurkar & Rajesh S. Patil, JJ.
Date on which the arguments were heard : 3rd October 2024.
Date on which the judgment is pronounced : 25th October 2024.
JUDGMENT (PER : Rajesh S. Patil, J.)
1. This Commercial Appeal From Order is filed under Section 13 of
the Commercial Courts Act, 2015 (for short 'the said Act') by the
appellant (original plaintiff), challenging the impugned judgment and
order dated 15th June 2024 passed by the District Judge, Pune on
application (Exhibit 5) in Commercial Suit No.13 of 2024, thereby
dismissing the application (Exhibit 5).
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FACTS
2. The parties are hereinafter referred for convenience as per their
nomenclature before the District Court in Commercial Suit.
3. The plaintiff filed Civil Suit for a declaration and injunction for
infringement of copyrights under Section 55 of the Copyrights Act and
under Section 38 of the Specific Relief Act, against the defendant no.1
and 2, who according to the plaintiffs have copied the entire material
of plaintiff's two books viz. "Hkkjrh; vFkZO;oLFkk" and "Hkkjrh; jkT;?kVuk
iz'kklu" written in Marathi language (for short "the said two books").
4. It is plaintiff's case in plaint that the set two books were written
by the plaintiffs and these books are published by Bhagyarathi
Prakashan owned by Mrs. Poonam Ranjan Kolambe who is the wife of
the plaintiff. It is also the plaintiff's case that he is into the business of
coaching classes, preparing students for competitive examinations and
he is running the tuition classes in the name and style of "Bhagyarati
Spardha Pariksha Kendra" and "Bhagyarathi IAS Academy". It is case
of the plaintiff that last 20 years he has extensively studied and
researched various subjects like Indian Economy, Indian Polity,
Environmental Studies, Indian History, Science and Technology and
others along with current affairs related to them, for which he is well
known personality in this field across the state of Maharashtra. On
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the basis of this extensive work, the plaintiff has prepared his own
books regarding the subject which are used by thousands of students
across Maharashtra. And after the study, the plaintiff himself is
preparing syllabus book either in his own handwriting and typing in
his own computer and the contents of the said syllabus are not
available in the market. It is also not available on public domain.
According to the plaintiff, the defendant nos.1 and 2 were the
students of the plaintiff's institution around the year 2012. However,
the defendant nos.1 and 2 failed in the preliminary examination
consequently for many years. The defendant nos. 1 and 2 used to visit
the office of the plaintiff from time to time seeking guidance. The
defendant nos. 1 and 2 acquired the faith of the plaintiff and they also
took parts in some of the functions and educational programs of the
plaintiff's institution. During the said period the defendant nos.1 and
2 got information about the business transaction and strategies of the
plaintiff. They were also in possession of various notes/articles
prepared by the plaintiff. The defendant nos. 1 and 2 being the ex-
student of the plaintiff institution also participated in the various
programs and lectures arranged by the plaintiff, and they were aware
about all the notes/articles and the said two books written by the
plaintiff.
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5. In the first week of November 2023, the plaintiff through some
students realised that the defendant no. 1 has written books in the
name of "Class Notes Bhartiya Arthvyavastha" and "Class Notes
Rajyaghatna". The plaintiff also realized that the said two books were
published by the defendant no.2 through "Lokseva Publication". The
plaintiff, hence purchased the said two books from defendant no.2 and
after perusal of the said two books, the plaintiff got knowledge that
the defendant nos. 1 and 2 in collusion with each other have almost
copied the contents of the said two books written by the plaintiff and
by making some minor changes, have prepared the said books by
using the words "Class Notes" as suffix. Moreover, these books of the
defendant nos. 1 and 2 have also been sold online through application
in the name of "Lokseva Academy". Hence, the plaintiff, through
Power of Attorney has filed a criminal case against the defendants.
Pursuant to which the First Information Report (FIR) was lodged
against the defendants. However, the defendants succeeded in seeking
an anticipatory bail from Sessions Court, Pune.
6. Thereafter, the plaintiff has filed the suit for infringement of
copyright against the defendants on 20 th February 2024 before the
District Judge, Pune. So also, the plaintiff lodged an Interim
Application (Exhibit 5) seeking temporary injunction against the
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defendants from selling, publishing the said duplicate books of the
defendants.
7. Initially the plaintiff moved the application (Exhibit 5) before
the District Court and by an exparte order dated 13th March 2024
interim injunction was granted against the defendants restraining
them from selling, publishing the said duplicate books i.e. "Class Notes
Bhartiya Arthvyavastha" and "Class Notes Rajyaghatna" till further
orders. The notices were issued to the defendants as to why the ad-
interim injunction should not be made absolute.
8. The defendants, thereafter appeared before the District Court
through their advocates and filed their reply to the interim application
and also filed their written statement. After pleadings were completed,
the District Court heard both the advocates appearing for the parties
and by its order dated 15th June 2024, rejected application (Exhibit 5)
of the plaintiff. The present Commercial Appeal From Order has been
filed by the plaintiff being aggrieved by the order passed by the
District Court, Pune.
SUBMISSIONS
9. Mr. Yatin Kochare appeared on behalf of the Appellant/Original
Plaintiff, and made his submissions.
(i) He submitted that the plaintiff original literally work viz.,
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"Bhartiya Rajyaghatana and Prashasan" and "Bhartiya
Arthavyavashta" were copied by the defendants under the book titled
as "Class note Rajyaghatana" and "Class note Bhartiya
Arthavyavashta".
(ii) He submitted that the plaintiff as original author-cum-owner
who has created his literally work in the book title "Bhartiya
Arthavyavashta" and the same was published in the year 2005 and the
second book "Bhartiya Rajyaghatana ani Prashasan" which was first
published on 2013. Admittedly much subsequently the alleged first
publication claim in made by the defendants in the book titled "Class
note Rajyaghatana" and "Class note Bhartiya Arthavyavashta" viz.
2021 and 2022.
(iii) He submitted that the plaintiff's works were original works
within the meaning of Section 13 of the Copyrights Act, thus the
burden lied on the defendants to show that their impugned works are
gathered from the public domain or information available in the
public domain.
(iv) He submitted the plaintiff is the author and owner of the
Original Literary work and has penned the same by investing and
exercising abundant skill, judgment and labour. An 'original' must be a
"product of an exercise of skill and judgment", where 'skill' is "the use
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of one's knowledge, developed aptitude or practised ability in
producing the work" and 'judgment' is "the use of one's capacity for
discernment or ability to form an opinion or evaluation by comparing
different possible options in producing the work".
(v) He submitted that the defendants were students of the
petitioner's academy and thus they had prior knowledge and were
well conversant with the plaintiff original literary work along with the
editions. It is apparent from the comparison that there is a deliberate
attempt to copy as the Petitioner has also copied the tables and
examples "as it is" without any changes.
(vi) He submitted that emphasize has to be given on originality and
substantial part and it is crucial to understand that if there is
substantial similarity between two works, the later work of defendants
cannot be considered original. The defendants registered copyrights
are an imitative work of the plaintiff and lacks originality.
(vii) He submitted that the impugned copyrights of the defendants
was applied for registration on 14th December 2023 in respect of
"Class notes Rajyaghatana", whereas the plaintiff is using the original
work "Bharatiya Rajyaghatana ani Prashashan" since 2013 and applied
for the registration on 25th November 2019 and therefore, the
plaintiff's registration and use of the said work precede the
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defendants' registered copyright's alleged adoption and alleged use.
(viii) He submitted that at the time of the alleged adoption and
alleged first use of the impugned copyrights by the defendants, the
said original work of the plaintiff had already become famous, well
known, and renowned and had already acquired further
distinctiveness including by virtue of their extensive and continuous
use and goodwill generated thereto.
(ix) He submitted that the defendants' alleged Copyrights proceeded
for registration despite the existence of the plaintiff's prior use and
application. The defendants have obtained the registration in bad faith
with the intention of riding upon the goodwill and reputation that
accrues to the plaintiff herein.
(x) He submitted that alleged copyrights are a blatant imitation of
the plaintiff well-known and popular work. The defendants' alleged
copyrights are devoid of a distinctive character. Accordingly, the
registration of the defendants' copyrights are prohibited from
registration under Section 13, 17 and 51 of the Act.
(xi) He submitted that the defendants's alleged Copyrights are
slavish imitation and lacks originality and as per Section 50 of
Copyrights Act r/w Rule 71 of the Copyrights Rules, hence, ought to
be expunged from the Register of the Copyrights.
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(xii) In support of his submissions, he relied upon the following
judgments:
(a) Sanjay Soya Private Limited Versus Narayani Trading Company1;
(b) Asian Paints (I) Ltd. vs. M/s. Jaikishan Paints & Allied
Produces2;
(c) Shyam Lal Paharia and another Versus Gaya Prasad Gupta
'Rasal'3;
(d) V. Govindan Versus E. M. Gopalakrishna Kone and another4;
(e) University of London Press, Limited v. University Tutorial Press,
Limited5;
(f) Bengal Waterproof Limited versus Bombay Waterproof
Manufacturing Company and another6;
(g) Midas Hygiene Industries (P) Ltd. and another versus Sudhir
Bhatia and others7;
(h) Hugo Boss Trademark Management GMBH and Co. KG vs.
Sandeep Arora Trading As Arras The Boss & Ors.8;
(i) R. G. Anand versus M/s. Delux Films and others9;
(j) Ratna Sagar Pvt. Ltd. Versus Trisea Publications & Ors.10;
(xiii) He submitted that the impugned judgment and order
passed by the District Court is against the well settled principles of
law, hence the same requires to be quashed and set aside and the
application (Exhibit 5) filed by the original plaintiff requires to be
allowed.
10. Mr. Abhijeet Desai appeared on behalf of the
respondent/original defendant, and made his submissions :-
1 2021 SCC OnLine Bom 407.
2 2002(4) Mh.L.J. 536.
3 1970 SCC OnLine ALL 260.
4 1954 SCC OnLine Mad 368
5 ---------------
6 (1997) 1 SCC 99
7 (2004) 3 SCC 90
8 C.O.(Comm.IPD-CR)6/2023 judgment dtd. 8th December 2023.
9 (1978) 4 SCC 118
10 1996 SCC OnLine Del 387.
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(i) He submitted that on purported grounds, the plaintiff filed a
suit for infringement on 26th February 2024, and without serving the
defendant while the matter appeared eight times before the District
Court, the plaintiff on 13th March 2024 obtained an ex-parte order of
interim injunction against the defendant.
(ii) He submitted that the defendant's publication of books started
on 17th December 2017 and the defendant academy started on 16 th
November 2022. The defendant academy as on 25 th March 2024 has
Online presence on YouTube channel with 1,71,047 subscribers and
58,211 subscribers on Telegram channel.
(iii) He submitted that the defendants have independently created
their work using publicly available sources, exercising their humbly
own skill, judgment, and labor. The content in their "Class Notes"
books primarily consists of facts, data, and information from publicly
available sources such as state board books, NCERT textbooks,
university reference materials, government reports, and official
websites. The defendants have merely compiled and presented these
facts, data, and public information in a comprehensive and
instructionally tailored manner for the benefit of students preparing
for competitive examinations.
(iv) He submitted that the findings arrived at by the District Court
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are based on the averments in their plaint, specifically mentioned in
paragraph nos.5 and 6, and the rejoinder filed by the plaintiff on page
no. 3, para no. 4. These averments were made to show that the
plaintiff's work is original and therefore has copyright protection. It is
pertinent to note that even before the District Court, the plaintiffs
have miserably failed to show that their work is original and they
merely relied on the Copyright Certificate. The defendants pointed out
that the claim of plaintiff is baseless, and in fact, as per the plaintiff's
own admission, one of their books' copyright certificate is still
awaited, while the defendant holds a valid copyright certificate.
(v) He further submitted that the second argument advanced by the
plaintiff before the District Court is that the defendants had copied
word-for-word from the plaintiffs' books. To substantiate this, plaintiff
submitted a comparative analysis placed on record from page no. 246
to page no. 411, which led to obtaining an ex-parte injunction. The
District Judge has recorded the plaintiff's submission and further
observed that he doesn't find a word-for-word copy.
(vi) The plaintiff had earlier filed a police complaint dated 3 rd
November 2023, alleging copyright violation, which was disposed of
on 27th November 2023 after the police found no merit in the
allegations. Nonetheless, the appellant has persisted with these
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baseless allegations.
(vii) On the plaintiff's insistence, an FIR was lodged against the
defendant. The said FIR was challenged by the defendant in this
Court by filing a petition under Section 482 of Code of Criminal
Procedure. By an order dated 23 rd February 2024, the Division Bench
of this Court directed that the chargesheet should not be filed with
respect to the said FIR, in view of Section 51 of the Copyright Act.
(viii) He further submitted that the concerned books are on subjects
of Indian Economics and Indian Constitution that are basic, factual,
and non-debatable, and the basic concepts of these subjects cannot be
changed.
(ix) He submitted that the plaintiff has acted with malafide
intentions by filing a frivolous case against defendants, posting
negative posts on various platforms regarding the offense lodged
against them and publishing news about the same, issuing
unauthorized letters to book vendors in Maharashtra stating that the
sale and possession of the defendants' books are banned and illegal.
The timing of filing of the case coincides with the release of
defendants new book available since 15 th February 2024 as well as the
tentative schedule of MPSC examinations.
(x) The plaintiff has miserably failed to prove that his work is
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original and deserving of copyright protection. The contents of his
books appear to be factual information and data available in the
public domain, which cannot be copyrighted.
(xi) The plaintiff's books comprises approximately 450 pages, while
the class notes of the defendants consist of only around 200 pages.
The plaintiff has introduced the concept of class notes in their new
edition, which was never a part of their book previously, after
observing the superior performance of the defendants' students.
(xii) It is a well-settled position under law that if any book is written
on the basis of information, data or material available in the public
domain, then it will not come under the purview of infringement of
copyright. The defendants have obtained valid copyright certificates
for their "Class Notes" books, and therefore, their products get
protection under Section 51 of the Copyright Act.
(xiii) The Gujarat High Court, in the case of Maheshbhai @
Kanbhai Haribhai Sojitra vs State of Gujarat in Criminal Misc.
Application No. 8581 of 2022, has held that if a person holds a valid
copyright certificate, the ingredients of copyright infringement are not
satisfied, and therefore the respondent are protected by Section 51 of
the Copy Right Act.
(xiv) To buttress his submissions, Mr. Desai relied upon the
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following judgments :-
(i) The judgment of Delhi High Court in case of Eastern Book
Co. & Ors. vs. Navin J. Desai & Anr11.;
(ii) The judgment of Delhi High Court in case of Manju Singal
Proprietor Singla Food Products vs. Deepak Kumar & Anr.12;
(iii) The judgment of Supreme Court in case of Wander Ltd. & Anr.
vs. Antox India P. Ltd.13,
ANALYSIS AND CONCLUSION:-
11. The District Judge while deciding the Plaintiff's application
(Exhibit 5) which was filed under the provisions of Order XXXIX Rules
1 and 2 of the Code of Civil Procedure has held that at a glance of the
photocopy of certain pages from the books of the plaintiff as well as
the class notes of the defendant no.1 prima facie he does not find it
just a word to word copy of the plaintiff's book. Further, the District
Judge held that if any book is written on the basis of the information
data or material available in public domain, then it will not come
under the purview of infringement of copyright. It was also held that
plaintiff had published two books namely "Hkkjrh; vFkZO;oLFkk" (Indian
Economy) and "Hkkjrh; jkT;?kVuk iz'kklu" (Indian Constitution), whereas
defendant no.1 has written two books and defendant no.2 has
published them namely "Class Notes of Indian Economics" and "Class
11 2001 SCC OnLine Del 45.
12 2023 SCC OnLine Del 5503
131990 Supp. SCC 727
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Notes of Constitution". It was also further held that out of the two
books plaintiff has received registration certificate from Copyright
Registry for his first book and for the second book the copyright
certificate is awaited, whereas the defendant had already received
Copyright Certificate from the Registry for his two books. In such a
situation the District Judge held that plaintiff has not made out a
prima facie case, nor the balance of convenience is in favour of the
plaintiff and further there will not be any irreparable injury if
temporary injunction is refused to the plaintiff. On this reasoning the
District Judge has dismissed the plaintiff's application for temporary
injunction.
12. The plaintiff has filed his suit for infringement of copyright
through a power of attorney holder. The plaintiff has got Copyright
Certificate for one of his book and for the second book the Copyright
Certificate is awaited. As against this the defendant's both the books
have already received Copyright Certificate. It is pertinent to note that
the plaintiff's first book on Economics is around 432 pages while the
defendant's first book "vFkZO;oLFkk (Economics)" is of 228 pages. The
plaintiff's second book on "Constitution" is around 427 pages while
defendant's book on on "Constitution" is around 205 pages. However
the plaintiff's and defendant's books size as far as length and breadth
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is almost the same. Hence, it can be seen that the defendant's books
are almost half the size to that of the plaintiff. The first book of the
plaintiff "Bhartiya Arthvyavstha" (Economics) sold at a price of Rs.
470/- whereas the defendant's book is sold at a price of Rs.300. The
second book of the plaintiff "Bhartiya Rajyaghatna" (Constitution) is
being sold at a price of Rs.450/- whereas the defendant's book is being
sold at Rs.260/-.
13. According to the plaintiff's own case, the plaintiff's book was
first published in the year 2005. However, the plaintiff applied for
registration of copyright with the Registry only in the year 2019 for
the first book and for the second book in the year 2021, whereas
defendant has published his book in the year 2017, and he applied for
registration and got registration on 9th November 2020.
14. It is the plaintiff's case that he is running coaching classes for
various competitive examinations including the examination of IAS
from the year 2007. The plaintiff case is that he has great reputation
amongst the students who appeared for competitive. According to us,
prima facie it is natural that the plaintiff's book would be sold on the
reputation which the plaintiff must have gathered due to long running
of his academy, and hence, his books would be sold on his name.
15. It is also the case of the defendant that the plaintiff has at the
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most prepared what is called as notes on the subject which are of
"Public Domain". So also, it is the case of the defendant that in fact
the plaintiff has not developed any kind of literature work, before the
plaintiff there were already authors who had published their notes
and that the plaintiff, in fact, has copied their work. At a prima facie
stage, we don't find that notes prepared on a subject which is a public
domain could be a part of Copyright Infringement.
16. In Sanjay Soya Private Limited (supra), the learned Single
Judge of this Court was dealing with an issue pertaining to interim
application in I.P. Suit for Trademark and Copyright Infringement. The
trademark in the said suit was a 'Label' mark.
17. In Asian Paints (I) Ltd. (supra) the learned Single Judge of this
Court was dealing with the registration of a copyright. The Court held
that the registration of the copyright merely raises a prima facie
presumption in respect of particulars entered in a register of
copyright. The presumption is, however, not conclusive. In the facts of
the case, the Court dealt with label of the product. However, in the
present proceedings, it is not applicable.
18. The plaintiff and defendants have prepared notes on the topic
"Constitution" and "Indian Economy". According to us, any person
who prepares notes on the topic "Constitution" and on the topic
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"Indian Econonomics", would have no right to change anything on the
basic will be putting up the Constitution in the simple form without
changing the content of the subject. The notes on these subjects would
be keeping in mind that the same would be meant for the students
appearing for competitive exams in the State of Maharashtra.
We have our own doubts that any notes prepared on these two
topics which does not allow a writer of the notes to change contents of
the topic, whether there can be any kind of violation of copyright.
Hence, at this stage of granting interim relief, pending the hearing of
the suit, we don't find it appropriate to go into the question whether
there can be any kind of infringement of a copyright right in the notes
prepared on the subject, where the contents can't be changed. This is
not a case where an author has written some kind of a book where
original work is involved. This is a case where only notes on the topic
of "Constitution" and "Indian Economics" have been prepared both by
the plaintiff and the defendants.
19. In Sanjay Soya Private Limited (supra), the learned Single
Judge of this Court was dealing with an issue relating to a suit filed
the infringement of trademark and copyright. The trademark in
questioned was a label mark and the plaintiff also claimed copyright
in the artistic work comprised in the label. The plaintiff claimed that it
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has copyright in the artistic work which have been used on the packet
of plaintiff's goods. Hence, in Sanjay Soya Private Limited (supra), the
Court was not dealing with literary. Hence, the findings recorded in
Sanjay Soya Private Limited (supra) will not be applicable in the
present case.
20. In Asian Paints (I) Ltd. (supra), the learned Single Judge of this
Court was dealing with application filed by the defendant for dismissal
of suit on the ground that the Court has no territorial jurisdiction, and
hence, the plaint be returned under the provisions Order VII, Rule 10
of the CPC. So also, an application for revoking the leave, granted
under the provisions of Clause XIV of Letters of Patent.
21. The plaintiff had filed a suit to restrain the defendants by an
injunction by using the label "Utkarsh" and/or any other lable
containing artistic work design, layout, colour scheme, systematic
arrangement and get up contained in the plaintiff's label so as to
infringe plaintiff's copyright contained in the label. "Utsav" registered
under the Copyright Act. The plaintiff was engaged in the business of
manufacturing and/or marketing paints and colour material. The
plaintiff adapted and commenced the use of trademark of the word
"Utsav". The plaintiff also prepared from an artist a label containing
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original artistic work and published the same.
22. The defendant had obtained a certificate of registration of
copyright in respect of it's work, hence the defendant's case was that
since it's work was registered, he was not liable for infringement of
Petitioner's copyright. The Court held that registration under the
Copyright Act raises a prima facie presumption in respect of his
particulars entered in the register of copyright. Once the plaintiff
establishes that it had created its work prior to the defendant, mere
registration by the defendant of its work cannot defeat the petitioner's
claim hence the petitioner succeeded and the application preferred by
the plaintiff for interim relief was made absolute.
23. Taking into consideration the fact that in Asian Paints (I) Ltd.
(supra), the facts are related to an artistic work of a label, and in
present proceeding, it is pertaining to "literary" the finding recorded
in Asian Paints (I) Ltd. (supra) does not apply to present proceedings.
24. Shyam Lal Paharia (supra) is a judgment of Allahabad High
Court, Single Judge, where the plaintiff had filed a suit for injunction
as the plaintiff claimed to be an author of the book "Hisabi
Machinery". It was published in the year 1941 and the second edition
was brought in the year 1944 in order to bring out new editions.
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25. The plaintiff thought to bring out cheaper edition of the book
with the title "Hisabi Darpan" but in the meanwhile the defendant
published its "Hisabi Machinery" in the year 1954. According to the
plaintiff, defendant's book was slavish copy of the various charts from
the plaintiff's book.
26. The District Court dismissed the plaintiff's suit. Aggrieved from
the dismissal of the suit, the plaintiff filed an appeal before this Court.
The appeal was filed in the year 1960 and was decided in the year
1970. The Court held that whether an impugned work is a colourable
imitation of person's work is always a question of fact and has to be
determined from the circumstances in each case. The Court compared
with the book of defendant and concluded that the defendant had
copied the tables has been given by in his book 49 pages. There were
certain mistakes in the figures given in the defendant's book. This was
also common in plaintiff's book. It was strange coincidence that the
mistakes in plaintiff's book and defendant's book was common. Hence,
the appeal of the plaintiff was allowed and the suit was decreed.
27. In Shyam Lal Paharia (supra), the Court was dealing with the
final hearing of the appeal which arised out of decree passed in the
suit. In the present proceedings, the District Court was dealing with
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the application (Exhibit 5) filed in the suit and the Court was at a
prima facie view that the interim injunction could not be passed. We
are dealing with an appeal from order pending the suit. The District
Court arrived at a finding that prima facie comparing the two notes
the defendants had not copied. Hence, finding recorded in the Shyam
Lal Paharia (supra) would not be applicable to the present
proceedings.
28. The Madras High Court in the case of V. Govindan (supra), the
learned Single Judge was dealing with an appeal filed by original
defendant. The suit filed by the plaintiff for infringement of plaintiff's
right and for injunction, since according to the plaintiff, the defendant
had copied word to word the dictionary published by the plaintiff.
After recording the evidence, the District Court come to a conclusion
that it is found that the defendant had page after page, word after
word, slavishly copied, including the errors, the meanings, the
arrangements and everything else practically the same. Hence, the suit
was decreed. The Madras High Court after the appeal was admitted in
the year 1951 while hearing the appeal in 1954 after considering the
entire evidence, confirmed the trial Court's decree and dismissed the
appeal.
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29. In V. Govindan (supra), the suit was finally heard and decided
the appeal after being admitted at the stage of final hearing, the Court
came to the conclusion that there was word to word copy including
the errors. In the present proceedings, we are dealing with an appeal
from an order passed in an interim application. The suit is still to be
decided and the evidence is yet to be led. Hence, the judgment of the
learned Single Judge of the Madras High Court would not help the
plaintiff in the present proceedings.
30. The judgment of University of London Press, Limited (supra) is
a English judgment which dealt with Paper set by examiners for
matriculation examination of University of London. Examiner were
appointed for a matriculation examination of the University of London
on a condition of appointment being that any copyright in the
examination papers should belong to the University. The University by
a deed entered with the plaintiff company assigned the copyright.
After the examination, the defendant company issued a publication
containing a number of examination papers including three which had
been set by two examiners who were co-plaintiffs, with criticism on
the papers and answers to questions in an action for infringement of
copyright the plaintiff succeeded under the provisions of Copyright
Act, 1911. The plaintiff has cited this English Judgment of the year
Diksha Rane/KVM 3 - COMAO 14 OF 2024-HATNURE.doc
1916, however, the plaintiff has not brought before this court the
definition of the words "copyright" in the England's Copyright Act,
1911. Therefore, the findings of the judgment of University of London
Press, Limited (supra) will not be binding on this Court.
31. The judgment of Bengal Waterproof Limited (supra) dealt with
the issue of infringement of trademark and passing off. The said
judgment was cited only for the purpose of urging the point of
continuous and recurring cause of action.
32. The present proceeding deals with an application for temporary
injunction being decided at interim stage pending the hearing of the
suit. The findings recorded in Bengal Waterproof Limited (supra) does
not in real sense have bearing in deciding the present Appeal From
Order.
33. In Midas Hygiene Industries (P) Ltd. (supra), the Supreme
Court dealing with an issue where the plaintiff had filed a suit for
infringement, trademark and copyright. The plaintiff asserted the
ownership of copyright in the packaging containing the words
"Laxman Rekha". The defendant who was working with the plaintiff
did not give any reply why he adopted "Magic Laxman Rekha". The
defendant's only contention was since 1992 it was using the word
Diksha Rane/KVM 3 - COMAO 14 OF 2024-HATNURE.doc
"Magic Laxman Rekha", hence, according to them, the plaintiff's suit
filed in the year 1996 suffered from delay and laches. The learned
Single Judge granted interim injunction, however, the Division Bench
vacated the injunction relying on the ground that there was delay and
laches in filing the suit. The Supreme Court held that the defendant
has not given any explanation. The defendant's carton looked almost
identical to that of the plaintiff. The Supreme Court held that this
prima facie indicates the dishonest intention to pass off the product of
the defendant as his goods as that of the plaintiff.
34. The finding recorded in Midas Hygiene Industries (P) Ltd.
(supra) are completely different fact, hence, the same will not be
applicable to the present proceedings.
35. In Hugo Boss Trademark Management GMBH and Co. KG
(supra), the learned Single Judge of Delhi High Court was dealing
with the petition seeking rectification from the register filed under
Section 50 of the Copyright Act being removed from the copyright
register titled "Araas the Boss".
36. The case of the petitioner was that it was a registered proprietor
of trademark "Hugo Boss" and "Boss", which were first adopted in the
year 1923. According to the petitioner, respondents started trading as
Diksha Rane/KVM 3 - COMAO 14 OF 2024-HATNURE.doc
"Araas the Boss", engaged in the same business as of the petitioner
that is selling of perfumes. Hence, the petitioner filed the petition for
rectification under Section 50 of the Copyright Act. The respondent
though served did not appear in the proceedings. The Court held that
the record shows that the respondent no.1 was indulged in habitual
copying of various well known marks. The Court came to the
conclusion that the artistic works of respondent "Araas the Boss" is an
imitative mark and not an original artistic work. Accordingly, the
petition was allowed.
37. In the judgment of the learned Single Judge of Delhi High
Court, facts were quite different, hence, the ratio is not applicable in
the present proceedings.
38. In the case of R. G. Anand (supra), the Supreme Court was
dealing with a case where a play written in Hindi in the year 1953 and
a motion picture produced in the year 1956 was involved.
39. Hence, the facts in R. G. Anand (supra) were quite different and
would not be applicable in the present proceedings as it falls under
literary works.
40. In the case of Ratna Sagar Pvt. Ltd. (supra), the learned Single
Judge of Delhi High Court was dealing with the case of the plaintiff
Diksha Rane/KVM 3 - COMAO 14 OF 2024-HATNURE.doc
where the defendant photo copied the plaintiff's book and was using
the same as if it is his own book and by changing the books title. The
learned Single Judge of Delhi High Court held that considering the
material produced by the party he had seen the books of plaintiff and
that of defendant and on a close examination on the books he got an
impression that the defendants had copied the work of the plaintiff.
The learned Single Judge of Delhi High Court further held that it was
admitted that plaintiff had published the work earlier and its rights
must be protected. Hence, a prima facie case was made out to grant
injunction.
41. The learned Single Judge was dealing with a matter where he
compared books of the plaintiff and defendant and hence, the prima
facie findings recorded on the facts of that case would not be
applicable. Hence, the learned Single Judge of Delhi High Court
which was dealing in that facts would not be binding upon us.
42. The Supreme Court in the judgment of Wander Ltd. (supra) has
held that The appellate court will not interfere with the exercise of
discretion of the court of first instance and substitute its own
discretion except where the discretion has been shown to have been
exercised arbitrarily, or capriciously or perversely or where the court
Diksha Rane/KVM 3 - COMAO 14 OF 2024-HATNURE.doc
had ignored the settled principles of law regulating grant or refusal of
interlocutory injunctions. An appeal against exercise of discretion is
said to be an appeal on principle. Appellate court will not reassess the
material and seek to reach a conclusion different from the one reached
by the court below solely on the ground that if it had considered the
matter at the trial stage it would have come to a contrary conclusion.
If the discretion has been exercised by the trial court reasonably and
in a judicial manner the fact that the appellate court would have taken
a different view may not justify interference with the trial court's
exercise of discretion.
43. According to us, the law laid down in the judgment Wander Ltd.
(supra) squarely applies to this case.
44. The learned Single Judge of Delhi High Court in Eastern Book
Co. (supra) was dealing with a case where the plaintiff company was
engaged in the business of printing and publishing various books in
the field of law. The plaintiff claimed that it had developed the
software known as "SCC OnLine Supreme Court Case Finder" and the
plaintiff had developed its own headnotes. The plaintiff claimed that
the defendant also developed a software wherein the defendant
copied the headnotes of Supreme Court judgments of plaintiffs.
Diksha Rane/KVM 3 - COMAO 14 OF 2024-HATNURE.doc
Hence, the plaintiff filed the suit against the defendant. The learned
Single Judge held that reproduction of a part of the judgment in the
headnote is not an abridgment of the judgment and no copyright can
be claimed therein.
45. According to us, the conclusion arrived at in this judgment
would be squarely applicable to the present proceedings.
46. In any case, it is the trial Court who in its discretionary powers
has refused to grant temporary injunction to the plaintiff. All relevant
aspects have been taken into consideration and a possible view of the
matter has been taken. Hence, we find prima facie there is no merit in
the case of the plaintiff. Accordingly, we pass the following order.
ORDER
(i) The Commercial Appeal From Order stands dismissed. So also,
the Interim Application is dismissed.
(ii) The hearing of the Commercial Suit No.13 of 2024 pending
before the District Court, Pune, is expedited. It is clarified that
observations made in this judgment are only in the context of
considering the prayer for interim relief. The trial Court shall not be
influenced by the same and shall decide the suit on its own merits.
[ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J. ]
Signed by: Diksha Rane
Designation: PS To Honourable Judge 29/29
Date: 25/10/2024 16:44:04
