Lamba Brothers P. Ltd. vs Lamba Brothers
1994 Latest Caselaw 233 Del

JUDGMENT

P.N. Nag, J.

(1) The Appeal is directed against the order dated 30.8.1993passed by learned single Judge whereby he has declined to entertain the suit for in fringement of copyright in the 'brochure' for Elbe machines of the plaintiff.

(2) The facts set out in the suit in substance are that the Managing Director of the plaintiff, Shri Harbhajan Singh Lamba, and the Managing Director of the defendant,. Shri Rajinder Singh Lamba, are the real brothers and both of them started a partnership firm known as Lamba Brothers in the year 1960 for the manufacture of Power Presses (Machines), Notching presses, shearing machines and bending machines under the trade mark E. The said partnership was dissolved on 1.4.1985 vide Deed of Dissolution dated 20.10.1985. After dissolution of the partnership, Shri Harbhajan Singh Lamba started his own business of manufacturing and merchandise of the aforesaid machines by inviting his son as his partner in the business. Both the brothers are in litigation with respect of the trade mark Elbee which is separately being pursued by them.

(3) The plaintiff, to promote its business, introduced catalogues which consist of technical data, pictures and technical specifications tables (along with its sistemconcerns). The plaintiff published one such Catalogue for its "C" and "H" Frame's Range of Presses in the year 1990 and one Shri S.K. Bassi was commissioned to create and design the same. The arrangement and layout, the words, pictures and specifications tables in the said catalogues were created and designed by Shri Bassiin July, 1990 for and on behalf of the plaintiff. Shri Bassi created the literary and artistic work contained in the catalogues for the plaintiff who is now the owner of the catalogues. These catalogues are entitled "From the House of Lamba and "C" and "H" Frame's Range of Presses. The second page thereof consists of the in formative data and each paragraph begins with a word printed in bold, the primary purpose being, to give the customer an idea of what the paragraph speaksabout. Throughout the catalogues one can see technical data along with either pictures or drawings in support which were carefully created and in this process substantial skill and labour were employed in designing these catalogues by the plaintiff. The plaintiff has also spent a substantial amount in creation of suchcatalogues. These catalogues have been in continuous and extensive use by the plaintiff till now. However, in the month of June, 1993, the plaintiff learnt that the defendant had started copying its aforesaid catalogues. After obtaining one such catalogue of the defendant, the plaintiff was shocked to note that the defendant had copied the plaintiff's informative data word to word. The defendant had even copied the manner in which the plaintiff had used the aforementioned bold word sat the beginning of each paragraph. In substance, according to the plaintiff, the plaintiff has a copyright in the catalogues which is literary and artistic work and that the same has been infringed by the defendant and therefore, the plaintiff has been constrained to file the suit.

(4) When the matter came up for admission before Court on 30.8.1993, after hearing the Counsel for the appellant-plaintiff, the learned Single Judge declined to entertain the suit for infringement of copyright in the 'brochure' for elbee machines of the plaintiff merely on the ground that it was essential that for copyright to exist, there must be compliance with the requirements of the statute and claim to copyright made upon the copyrightable matter before any action in copyright could be sustained, and perfected by statutory remedies. In this case no reservation claim of copyright in the catalogue/brochure in recognised method has been claimed, e.g., mark C, or the expression copyright reserved or copyright:Lamba Brothers (P) Ltd. There is no such reservation; and secondly under Section 18(14) of the Press and Registration of Books Act, 1867, the name and address of the proprietor of the copyright or of any portion of such copyright has to be entered,which has not been entered in the present case.

(5) We have heard the learned Counsel for the appellant. He submits that there is no provision in the Act which provides for the reservation claim of copyright in the catalogue/brochure in any recognized method as referred to by the learned Single Judge. However, in the plaint, the appellant-plaintiff has clearly stated that they have such a copyright and that copyright has been infringed and under the provisions of the Copyright Act it falls within the meaning of copyright since it is literary and artistic work. Furthermore, the name and the owner of the copyright and address are also shown on the catalogues. Learned Counsel further submits that Press and Registration of Books Act, 1867 is not applicable in the present casein the first instance and even if it is assumed so then there is sufficient compliance of Section 18(14) of the Press and Registration of Books Act, 1867, i.e., the name and address of the proprietor of the copyright is mentioned in the catalogues of theappellant.

(6) We have considered the matter and there seems to be a good deal of force in the submission of learned Counsel for the appellant. We are unable to find in the Copyright Act any provision which provides for the reservation of claim of copyright in the catalogues in any of the recognised method, like mark C etc. as held by the learned Single Judge. However, there is specific averment in the plaint thatthe appellant-plaintiff is the owner of this literary and artistic work of the catalogues and it was created and designed by them in 1990 and the respondent-defendant has copied this catalogues in 1993. In the face of this allegation made in the plaint, it would not be appropriate to decline to entertain the suit at this stage when the parties are still to go on trial and the matter is yet to be decided. The suit was at the admission stage and even summons had not been issued to therespondent-defendant. Furthermore, without expressing any opinion whether or not Press and Registration of Books Act, 1867 is applicable in the present case, it is sufficient to say that the catalogues refer to the ownership of the appellant plaintiffand address has also been given thereon, i.e, Lamba Brothers Pvt. Ltd., 6/12, KirtiNagar Industrial Area, New Delhi. There is sufficient compliance of Section 18(14) of the Press Registration Act.

(7) Furthermore, the learned Single Judge has relied upon the Universal Copyright Convention revised at Paris in 1971, Article Iii, and according to the learned Judge, Article Iii requires the plaintiff to claim copyright mentioning the name of the author; year of publication; symbol (C); accompanied by name of the author or there should be any other reasonable notice for claim of copyright. On the other hand, learned Counsel for the appellant relies upon Article 5(2) of the Berne Convention which provides that enjoyment and the exercise of these copyrights shall not be subject to any formality. In our opinion, it is not necessary to decide this question at this stage as in the suit the plaintiff has alleged that the copyright subsists in its favor and there is infringement by the defendant of such copyright and it has right to maintain the suit. There is no bar to the maintainability of the suit under any existing law and, therefore, in our opinion, the learned Judge has erroneously declined to entertain the present suit.

(8) In the light of what is discussed above, the appeal is allowed, the impugned judgment dated 30.8.1993 of the learned Single Judge is set aside and the suit is restored to its original number. The learned Single Judge will hear and try the suit in accordance with law.