Delhi High Court
Hindustan Lever Ltd. vs Rameshwar Mundia & Anr. on 2 December, 2008
Author: Pradeep Nandrajog
R-83
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Order : December 02, 2008
+ RFA 720/1993
HINDUSTAN LEVER LTD. ..... Appellant
Through: Ms. Mamta Jha, Advocate
versus
RAMESHWAR MUNDIA & ANR. ..... Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE J.R.MIDHA
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J.(Oral)
1. Heard learned counsel for the appellant.
2. A short issue arises for consideration: whether
statutory authorities are governed by the principle of comity.
3. The principle of comity is well recognized in law,
whereunder different statutory authorities and courts give due
respect to the opinion rendered by each other. Only when the
decision or an opinion of a Court or a statutory authority is
contrary to law, public policy or morality are the grounds on
which the principle of comity has to be ignored.
4. The appellant and the respondent are running a feud
with respect to the claim of the appellant that the wrapper of
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the respondent in which it sells detergent is a slavish copy of the
label of the appellant.
5. The appellant sells the detergent i.e. soap cake under
the registered trademark "LIFEBUOY". The wrapper is a mixture
of white and red colours used, with the red colour taking a space
of approximately 1/3rd of the size of the wrapper. The
respondent is using a wrapper of same size, same colour, with
same proportion of the segment of the colour red vis-à-vis white.
The name used by the respondent is "LUCKYSOAP".
6. In the opposition before the Registrar of Trademarks
when respondent sought registration of the mark and the
wrapper as its proprietary property, the opposition by the
appellant succeeded with the Registrar of Trademarks turning
down the application filed by the respondent vide order dated
13.9.1988.
7. In proceedings before the Copyright Board under
Section 50 of the Copyright Act the appellant has failed.
8. The order passed by the Copyright Board,
unfortunately, has not even taken judicial notice of the order
passed by the Registrar of Trademarks.
9. We note that on a comparison of the two labels,
whereas Registrar of Trademarks has held that the wrapper of
the respondent, if permitted to be registered, would cause
confusion in the eyes of the consumer and hence is deceptively
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similar to that of the appellant, the Copyright Board has arrived
at a totally contradictory finding holding as under:-
"4. Now on a very careful consideration of the
two labels in their entirety one immediately reaches
the conclusion that there is no substance in the
contention of the petitioner that the impugned label
of the respondent is a substantial reproduction of
the label of the petitioner. The law is that while
dealing with the question of infringement of
copyright of an artistic work, the Court is to test on
the visual appearance of the object and drawing;
design of the artistic work in question and by
applying the test viz. "the lay observer test"
whether to persons who are not experts in relation
to objects of that description, the object appears to
be a reproduction. If to the lay observe it would not
appear to be a reproduction, there is no
infringement of the artistic copy right in the work.
5. Now, examining the two labels before us in
the light of the aforesaid test, it is crystal clear to
the naked eyes that the two labels by no standards
can be considered to be similar or substantially
similar. One cannot be the copy of the other
simply because both the labels have red
backgrounds and words in white. Apart from
differences in detail in both the labels it is difficult to
comprehend that one would be mistaken for the
other. We have no hesitation to reach the
conclusion that the impugned label registered in the
name of the respondent is not a copy or substantial
reproduction of the label of the petitioner. Simply
because the petitioner is a very big company and is
a manufacturer of a well known soap, it cannot be
permitted to claim a monopoly of two labels with a
red background and words in white colour.
We are convinced that the petitioner has miserably
failed to establish its case of piracy of label by the
respondent. In the result the petition deserves to
be dismissed. Since the respondent has not
appeared we do not think it proper to saddle the
petitioner with the costs of this petition. Hence the
petition is hereby dismissed with no order as to
costs."
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10. We note that the appellant has raised a grievance in
ground E that the Copyright Board gravely erred in not even
discussing the order passed by the Registrar of Trademarks.
11. Learned counsel for the appellant states that the
order passed by the Registrar of Trademarks has attained
finality.
12. We do not intend to decide the issue on the process
of reasoning adopted by the Copyright Board for the reason we
are satisfied that on the principle of comity the Copyright
Board ought to have given due respect and weightage to a prior
order passed by the Statutory Authority namely the Registrar of
Trademarks.
13. Before concluding we may note that there is a factual
error in the order passed by the Copyright Board. The error
being a statement of fact recorded, which is erroneous, that the
appellant has not obtained any registration of its wrapper under
the Copyright Act. This is incorrect.
14. The petition filed by the appellant under Section 50
of the Copyright Act requires to be allowed.
15. The appeal is allowed.
16. Impugned order dated 29.6.1993 passed by the
Copyright Board is set aside. Petition filed by the appellant
under Section 50 is allowed with a direction to the Registrar of
Copyright to expunge the copyright granted vide entry No.A-
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30585/80 in the name of the first respondent.
17. No costs.
PRADEEP NANDRAJOG, J.
J.R.MIDHA, J.
DECEMBER 02, 2008
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