Delhi High Court
M/S. Pachranga International ... vs M/S. Pachranga International ... on 30 March, 2012
Author: A.K.Sikri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.850 of 2010
Reserved On: 6th March, 2012
% Pronounced on: 30th March, 2012
M/s. PACHRANGA INTERNATIONAL
(CHANDER GROUP) . . . APPELLANT
Through: Mr. S.K. Bansal, Advocate
with Mr. S. Kumar, Advocate.
VERSUS
M/s. PACHRANGA INTERNATIONAL
PVT. LTD. . . .RESPONDENT
Through: Mr. Neeraj Grover, Advocate
with Ms. Shilpa Arora,
Advocate.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
A.K. SIKRI, Acting Chief Justice
1. The instant appeal arises out of order dated 30.9.2010 passed
by the Copyright Board (hereinafter referred to as ‗the Board').
By means of that order, the Board has allowed the application
of the respondent herein preferred under Section 50 of the
Copyright Act, 1957 (hereinafter referred to as ‗the Act') for
rectification of register by expunction of 11 registration
numbers which had been granted to the appellant under the
Act inasmuch as the Board found that the said registration was
in violation Section 15(2) of the Act. For arriving at this
conclusion, the Board followed the judgment of this Court in
the case of Microfibres Inc. Vs. Girdhar and Co. & Anr.
[2009 (4) PTC 519 (Del) (DB).
2. After stating these preliminaries, it is now stage to traverse
through material facts in brief. In the year 1983, a partnership
firm under the name and style of M/s Pachranga International
was constituted with Sh. Asa Nand Dhingra and Sh. Rajinder
Dhingra as its partners vide partnership deed dated 01.1.1983.
The trademark PIP was coned and adopted by that firm for use
in the business of the partnership firm in addition to the
trademark PACHRANGA which was being used in the course of
business since many years after the same was adopted by Sh.
Murli Dhar Dhingra, i.e., father of Sh. Asa Nand Dhingra and
grandfather of Sh. Rajinder Dhingra in respect of the goods,
i.e., pickles, chutneys and other allied products.
3. As per the respondents, Sh. Rajinder Dhingra also got created
the artistic work(s) in respect of the Labels used for packaging
various products under the trade mark PIP under his
supervision, guidance and instructions through the printers of
labels. The said labels had a unique get-up, colour
combination and layout and thus qualified to be ―original
artistic work(s)‖ and Sh. Rajinder Dhingra was the owner of
such artistic works which were then allowed by him to be used
in the partnership firm ―M/s. Pachranga International‖. In the
year 1984, Sh. Chander Mohan Dhingra, i.e., the brother of
Rajinder Dhingra and Son of Sh. Asa Nand Dhingra requested
his father and brother to join him in the business of M/s
Pachranga International and accordingly he was joined in the
said firm as partner with effect from 01.1.1984 vide
partnership dated 01.1.1984. Thereafter, another partnership
deed dated 01.4.1994 was executed which inter alia included
the following term:
―14. That each partner shall devote his full time &
attention to the business of the partnership firm and
cannot do any other business or business as a proprietor
or any partnership or any other capacity unless he seeks
written permission from all the partners of this deed.‖
4. However, later on in the year 1994, Shr. Chander Mohan
Dhingra created and promoted a company Pachranga Syndicate
Pvt. Ltd. Some disputes erupted thereafter. According to the
respondent, Sh. Chander Mohan Dhingra was expunged from
the partnership vide registered notice dated 15.2.2001 in terms
of Clause 10 of the Partnership Deed. Since the dispute
proceeded in the partnership firm, even Sh. Rajinder Dhingra
promoted and incorporated the company Pachranga
International Pvt. Ltd. (respondent herein) on 18.7.2001. It is
not necessary to state in detail various disputes arose between
the two factions, one led by Sh. Chander Mohan Dhingra and
other by Sh. Rajinder Kr. Dhingra and various Court
proceedings between them. Suffice is to state that insofar
partnership firm is concerned, there were divisions and both
the groups started operating as M/s. Pachranga International
(Chander Group) and M/s. Pachranga International (Rajinder
Group). In one of the proceedings, the respondent came to
know that the appellant was claiming ownership of copyrights
registered under the Act in respect of 11 such registration,
details of which are as under:
―[1] A-65566/2003 : PIP Amla pickle.
[2] A-65567/2003 : PIP Mango Sweet Chutney.
[3] A-65568/2003 : PIP Mangao Peeled pickle.
[4] A-65569/2003 : PIP Lime Pickle spiced.
[5] A-65570/2003 : PIP Red Chillies Stuffed pickle.
[6] A-65571/2003 : PIP Mango unpeeled pickle.
[7] A-65572/2003 : PIP Tenti Dela picle.
[8] A-65573/2003 : PIP Green Chillies pickle.
[9] A-65574/2003 : Turnip Cauliflower Carrot Sweet pickle.
[10] A-65575/2003 : PIP Karonda pickle.
[11] A-65576/2003 : PIP Achar Pachranga.‖
5. According to the respondent these registrations were obtained
by the appellant Chander Mohan's group by committing fraud
on the Registrar and registry of Copyrights. Thus, the
respondent filed application under Section 50 of the Act on
30.3.2009 before the Board for cancellation of the aforesaid
copyright registration. The grounds on which expunction was
sought are following:
―(a) Impugned works are not original artistic works of
respondent No.1 or its partners and the same are
in fact the original artistic works of the predecessor
in interest and the title of the petitioner company,
that is, M/s. Pachranga International;
(b) Names disclosed in column no.7 of the certificates
is not the artist of the impugned works;
(c) No Objection Certificates under section 45 were
fraudulently obtained from the Registrar of Trade
Marks;
(d) Impugned registrations are illegal and have been
granted in violation of the provisions of the
Copyright Act and the rules framed thereunder:
(e) There is non-compliance of rule 16(3) of the
Copyright Rules as no notice of the same was
served on the petitioner company or on Shri
Rajinder Dhingra who was the owner of the said
works and had a valid interest in the said works.‖
6. The appellant contested this petition by refuting the aforesaid
grounds and claiming as under:
―(a) It is wrong and denied that the impugned works
are not the original artistic work of respondent No.1 or its
partners. It is wrong and denied that the same are the
original artistic work of the predecessor-in-interest and
title of the petitioner company;
(b) It is denied that the name disclosed in column No.7
of the impugned entries is not the artist of the impugned
label nor he can claim to be the first owner of the works:
(c) It is wrong and denied that the particulars
furnished by the respondent before the Registrar are false
and wrong and the respondent has committed fraud upon
the Registrar of Copyrights while seeking the impugned
registration;
(d) It is wrong and denied that the registration of the
impugned works have been wrongly granted and are
wrongly remaining on the Register in favour of the
respondent;
(e) It is wrong and denied that no objection certificate
granted under section 45 of the Copyright Act, 1957 were
obtained fraudulently by the partners of the respondent
No.1 from Registrar of Trade Marks.‖
7. After hearing the parties, the Board came to the conclusion
that there was violation of Rule 16(3) of the Copyright Rules,
1958 (hereinafter referred to as ‗the Rules') as well as no
notice was served upon the respondent even when the
respondent had interest in the matter. In the opinion of the
Board proceedings, the subject matter of copyright is a design
and therefore, registration was in violation Section 15(2) of the
Act. On these two grounds, the application of the respondent
has been allowed directing the Registrar to expunge the
impugned entries. The reasons for coming to this conclusion
are contained in Para 6 of the impugned order, which reads as
under:
―6. Impugned registrations relate to 2003 and the
family business comprising of two brothers and the father
is of much earlier origin and there is enough to be cited
as argued and supported by evidences that the
respondent had a knowledge of the presence of the
subject matter of the labels and that too within the family
before making application for the impugned registrations.
Hence, there is irrefutable inference in favour of the
alleged violation of rule 16(3). Besides going into it, it is
true in no uncertain terms that the proposed labels are
meant to be sued in relation to goods and the product in
question, that is, pickles, etc. are items to be sold in
hundreds of packages every day. Respondent is having
good production line and thus quite a big number with the
impugned labels must have gone out in the market by
now. It needs reproduction in relation to the products
involved through a mechanical manner for more than 50
times - magic figure could have crossed not over a long
period but in span of a day itself. It is a clear case of
violation of section 15(2) of the Copyright Act, 1957 as
judicially elaborated in Microfibres Inc vs. Girdhar and Co.
& Anr. 2009 (4) PTC 519 (Del) (DB).‖
8. The appellant has assailed both the grounds on which the order
of the Board rests in this appeal filed under Section 26 of the
Act questioning the said order of the Board.
Re: Violation of Rule 16(3) of the Rules:
9. Rule 16 of the Rules reads as under:
―16. Application for Registration of Copyright. -- (1) Every
application for registration of copyright shall be made in
accordance with Form IV and every application for
registration of changes in the particulars of copyright
entered in the Register of Copyright shall be made in
accordance with Form V.
(2) Every such application shall be in respect of one work
only, shall be made in triplicate and shall be accompanied
by the fee specified in the Second Schedule in this behalf.
(3) The person applying for registration shall give notice
of his application to every person who claims or has any
interest in the subject-matter of the copyright or disputes
the rights of the applicant to it.
(4) If no objection to such registration is received by the
Registrar of Copyrights within thirty days of the receipt of
the application by him, he shall, if satisfied about the
correctness of the particulars given in the application,
enter such particulars in the Register of Copyrights.
(5) If the Registrar of Copyrights receives any objections
for such registration within the time specified in sub-rule
(4), or, if he is not satisfied about the correctness of the
particulars given in the application, he may, after holding
such inquiry as he deems fit, enter such particulars of the
work in the Register of Copyrights as he considers proper.
(6) The Registrar of Copyrights shall, as soon as may be,
send, wherever practicable, a copy of the entries made in
the Register of Copyrights to the parties concerned.‖
10. Sub-rule (3) of Rule 16 of the Rules puts an obligation on the
person who applies for registration to give notice of the
application to every person who claims or has any interest in
the subject matter of the copyright or disputes the right of the
applicant to it. It was the submission of the learned counsel
for the appellant that no notice was required to be given by the
appellant when the appellant applied for the registration
because of the reason that the respondent had neither claimed
nor had any interest in the subject matter nor has disputed
rights of the appellant to it. His submission, in this behalf, was
that the two groups who were earlier united and had formed
the partnership firm Pachranga International and had inter alia
entered into the partnership deed on 01.4.1998, the same was
revised by entering into afresh partnership deed on 01.4.1999.
It had become defunct in the year 2002. Thereafter, the
appellant started its business in the year 2003 and created new
labels which was the subject matter of copyright registration.
In such a situation, argued the learned counsel, there was no
question of giving the notice. He also submitted that in the
application for registration dated 25.11.2005 filed for this
purpose, the label which were annexed clearly describe the
firm as ―Pachranga International (Chander Group)‖. His
submission was that mentioning of ―Chander Group‖ was
inadvertently omitted in the application and for this reason
amendment application was filed on 31.10.2006 seeking
amendment in the name of M/s. Pachranga International
(Chander Group). He submitted that this aspect was totally
ignored by the Board while passing the impugned order.
Learned counsel also argued that if the requirement of Rule
16(3) of the Rules is read as held by the Board, it may be
impossible for the applicant for registration to find out as to
who could lay its claim or dispute the claim of the applicant in
the copyright registration and also to give notice to each and
every manufacturer of the same/similar products.
11. This argument of the appellant is too naïve and cannot be
accepted on the facts of the present case. As already noticed
above, the factions which are related to each other had been
doing the business jointly. They had formed the partnership
firm ―M/s. Pachranga International‖. This firm was using the
trademark ‗PIP', which had become quite famous. The sale of
the product manufactured by this firm runs into 100 Crores of
rupees. Thereafter, the two partners fell apart owing to certain
disputes created thereon separate groups. The appellant
formed the partnership firm M/s. Pachranga International
(Chander Group). It started to using the said trademark. Here
the appellant claims that it had created its own copyright in
respect of certain works. The essence and foundation of these
works remain the same with use of same trademark on the
alleged copyright work. In this backdrop, it is too innocent
argument to state that it would have no inclination that the
respondent would not be interested and would not lay claim
over these kinds of purported copyright works. When we probe
the matter by going little deeper into the documents, we also
find that the move of the appellant in filing application for
registration was not bona fide and there was an attempt to
mislead. In the application, name of the application was shown
as ―Pachranga International‖. Chander group was not
mentioned therein at all. Further, in column (9) year of the
first publication was mentioned as 1983. This was palpably a
false statement, as in 1983 it was the united partnership firm
which was working. It negates the claim of the appellant that
the impugned work was commenced in the year 2003. The
registration was obtained by giving this particular which was
clearly a mala fide move. In a clever manner, application for
amendment was filed in the year 2006. Moreover, when we
see the labels submitted for registration and compare them
with the labels which were used by the erstwhile firm, we find
that they are substantially the same. We, thus, find that the
respondent herein clearly had interest in the subject matter
and was disputing the right of the appellant. The word
―dispute‖ would not mean legal dispute. The respondent was,
thus, entitled to a notice in terms of Rule 16(3) of the Rules
and non-giving of this notice and obtaining the registration at
the back of the respondent in a fraudulent manner, would
clearly vitiate such a registration.
12. We, thus, sustain the order of the Board on this ground. It is
not necessary to go into other grounds alleging violation of
Section 15(2) of the Act, as the counsel for the respondent had
also conceded that the order of the Board may not be correct
on that aspect. In view of this, we are not recording our
findings on this issue. To sum up, when the order of the Board
can be sustained on the ground that there is a violation of Rule
16(3) of the Rules coupled with the fact that the registration
was obtained in a fraudulent manner, it would lead to
inevitable conclusion that the appeal is totally misconceived
and without merits.
13. We, thus, accordingly dismiss this appeal with cost quantified
at `25,000/-.
ACTING CHIEF JUSTICE
(RAJIV SAHAI ENDLAW)
JUDGE
MARCH 30, 2012
pmc
