JUDGMENT
S. Mukerjee, J.
1. The present suit is for the issuance of perpetual injunction restraining the defendants, their servants, agents etc. from using a get up of label in relation to pressure cookers which is deceptively similar to the label of the plaintiff having distinctive features and registered under the provisions of the Copyright Act, 1957 vide registration No. A-27389/80.
2. Perpetual injunction has also been claimed restraining the defendants from the dealing in any manner with their cook book having passages reproduced verbatim from the cook book of the plaintiff titled as ‘Pressure Cookery and Instructions Book’, thereby infringing the Copyright of the cook book of the plaintiff.
3. Further relief is also sought for delivering up and destruction of all such pressure cookers, accessories and articles as are being employed by the defendant in the manufacture of their offending goods which are in the custody, power and possession of the defendants.
4. The plaintiff has also prayed for a direction for delivering up of all the impugned materials including the cook book for the purpose of destruction.
5. It has also been prayed that an order for rendition of accounts profits illegally earned by the defendants, by way of passing of its goods as the goods of the plaintiff, be made.
6. The brief facts of the case are as follows:-
7. The plaintiff is a public limited company incorporated under the Companies Act, 1956 and having its registered office at F-101, Maker Towers, Cuffe Parade, Bombay-400 005.
8. The plaintiff is a very old, well known and a reputed company engaged in the manufacture and marketing of pressure cookers and parts thereof under its reputed trade mark ‘Hawkins’, for the past more than 30 years.
9. The plaintiff company was formerly known as “Pressure Cookers and Appliances Ltd.”. Subsequently, it was named as ‘Hawkins Cookers Ltd.’ The defendants Nos. 1 & 2 are firms to the best of the knowledge of the plaintiff company and are engaged in the business of sale of pressure cookers and are located at Railway Road, Kapurthala, Punjab.
10. Sometimes in the year 1974, the plaintiff company introduced its pressure cooker under a distinct and particular get up of label, Exh-PW1/3, consisting of the following features:
(a). Two semi circles disposed in a spaced and reflective manner to each other;
(b). Two semi circles in red colour;
(c). The space between the semi circles is in white;
(d). The trade mark is written in black colour in white space;
(e). The words “Pressure Cooker” are written in white in the lower semi circle.
11. The features (c) to (e) are duly protected under the provisions of the Copyright Act, 1957 under Registration No. A-27389/80, Exhibit PW1/4, and same is valid, subsisting and in force.
12. Because of the excellent quality of the pressure cookers sold and offered for sale by the plaintiff company, under its aforesaid distinct get-up of label, which has acquired immense good-will and reputation throughout the country. The intending purchasers identify and recognise the pressure cookers of the plaintiff company, by the said distinct get-up of the label.
13. The pressure cookers of the plaintiff company are sold both in the rural and urban areas of the country, and the intending purchasers, particularly in the rural areas, identify the pressure cookers of the plaintiff company by the said label.
14. The plaintiff company has incurred huge expenditure of Rs. 6.25 crores on advertising its pressure cookers under the distinct get-up of the label extensively throughout India between October, 1985 to December, 1991.
15. The total sales figure of the plaintiff company for the period of October, 1986 to December, 1991, Exhibit PW1/5 to Exhibit PW1/8 and Mark A-1 to A-6 , in relation to the pressure cookers bearing the said label is as follows:-
Year
Rs.
(in Crores)
October,
1986-September, 1987
26.53
October,
1987-March, 1989
47.84
April,
1989-March, 1990
40.99
April,
1990-March, 1991
45. 11
March,
1991-December, 1991
42.00
16. The plaintiff company alleges it came to know that defendant No. 1 has acquired the trade mark “APSLEY” in relation to its pressure cookers with the label substantially and deceptively similar to that of the plaintiff company. This contention of the plaintiff company derive support from the comparative table, Ext. PW1/10.
17. Therefore, it is contended by the plaintiff company that the use of the label complaint of by the defendant in relation to their pressure cookers, is intended and/or likely to deceive purchasers and to intending purchasers and induce them into the belief that the said pressure cookers of the said plaintiff company, and with particular reference to the intending purchasers in the rural areas, to identify the pressure cookers of the plaintiff company by their label.
18. It is further contended that defendant No. 1 adopted the said get-up of the label in relation to its pressure cookers so as to trade upon the reputation and good will of the plaintiff company and to mislead and create confusion in the minds of the public and earn undue profit.
19. The plaintiff company has further contended that the said act of the defendant No. 1 is likely to deceive and/or cause confusion in the course of trade thereof and would enable the defendant No. 1 in passing of their pressure cookers as that of the plaintiff’s. Further, that it amounts to an infringement of their copyright subsisting in the artistic work of the label in favor of the plaintiff company under their Registration No. A-27389/80.
20. It is also contended that the malafide and dishonest intentions of the defendant No. 1, are further reflected from their cook book which is also titled as “Pressure Cookery & Instructions Book”, Exhibit P-2. It is further submitted that a comparative study of the cook book of the plaintiff company and the defendant No. 1 reflects that the latter has verbatim reproduced substantial passage from the cook book of the plaintiff company, “Pressure Cookery & Instructions Book”, Exhibit – PW1/9, amounting to infringement of their copyright.
21. The plaintiff company reportedly served, a cease and desist notice dated 30th November, 1990, Exhibit – PW/11, upon defendant No. 1, M/s. Magicook Appliances Company, P.O. Box No. 21, Kapurthala, Punjab, requiring them to desist from selling pressure cookers under the impugned label and from using their cook books and to comply with certain reasonable requirements. However, no reply was received from defendant No. 1.
22. Thereafter, the plaintiff company made enquiries in the market to determine full address of defendant No. 1, M/s. Magicook Appliances & Company. Such enquiries from the market did not reveal the full address of the said company but only the abovementioned Post Box Address was available.
23. Later it is contended towards the end of October 1991, the plaintiff company received a letter dated 19th October, 1991 from defendant No. 2 and only upon receipt of the said letter the plaintiff company could ascertain for the first time that the defendant No. 2 was also claiming to be the manufacturer of the impugned APSLEY Pressure Cookers, having the same Post Box No. 21 as that of defendant No. 1, M/s. Magicook Appliances Company.
24. It is contended that the aforesaid facts clearly establish that defendant Nos. 1 & 2 were in hand in glove with each other.
25. In order to be certain that the defendants were the offending parties, a further reminder notice dated 23rd November 1991, Exhibit-PW1/12, was caused to be served upon the defendant No. 1 to which also no reply was received. Hence, the suit for Permanent Injunction & Rendition of Accounts.
26. Written Statement was filed by the Defendants and thereafter the following issues were framed vide order dated 15th September, 1998:-
1. Whether the plaint has been signed and verified and suit instituted by a duly authorised person on behalf of the plaintiff? OPP
2. Whether the impugned label of the defendant is deceptively similar to that of the plaintiff?
3. Whether the defendants have any right to market their goods under the same mark and label as that of the plaintiff? If so, to what effect?
4. Whether the defendants are passing off their goods as those of the plaintiff? If so, to what effect?
5. Whether the plaintiff has a copyright in the book “Pressure Cookers and Instruction Book?
6. To what relief, if any, is the plaintiff entitled?
27. Vide Order dated 6th January, 2000 of this Hon’ble Court, the Court Ordered that the defendants be proceeded against ex-parte, since even after giving ample time and opportunity, the defendants failed to appear for admission and denial of documents and for framing of issues.
28. On 7th August, 2002, the arguments were heard ex parte and the judgment reserved.
29. My findings on the issues are set out hereinbelow:-
ISSUE NO. 1 :
30. The plaintiff Company had duly proved the Power of Attorney Exhibit PW1/1, and the Certificate of Incorporation, Exh. PW1/2, incorporating the changed name of the plaintiff company from “Pressure Cooker and Appliances Ltd.” to “Hawkins Cookers Ltd.” As such, the plaint has been signed and verified and the suit instituted by a duly authorised person. Hence, this issue is decided in favor of the plaintiff company and against the defendants.
ISSUE NO. 2 :
31. The registration certificate of the plaintiff company under the Copyright Act, 1957 has been exhibited as Exhibit PW1/4. The actual labour/sticker is Exh. PW1/3. The plaintiff’s label/sticker is clearly having distinctive features, colour and get up, which have been set out in para 5 of the plaint, and duly affirmed in para 3 of the affidavit by way of evidence. The comparative position of similarities and deceptions have been set out in para No. 17 of the plaint and in para 6 of the affidavit by way of evidence. The said chart has been set out earlier in this judgment. Since the defendants have been proceeded ex parte, there is no rebuttal on the above aspects on part of the said defendants. I am satisfied that the impugned label of the defendant which is Exhibit P-1, is deceptively similar to that of the plaintiff’s label/sticker and therefore issue No. 2 is decided in favor of the plaintiff company and against the defendants.
ISSUE NO. 3:
32. The label of the plaintiff company which is Exhibit PW1/3 is an artistic work within the meaning of Section 2(e) of the Copyrights Act, 1957. The same is duly registered under the Copyrights Act and the registration certificate is Exhibit PW1/4. The categorical stand of the plaintiff company both in the pleadings and the affidavit by way of evidence is that it is using the said label since the year 1974 and the said use is subsisting and valid.
33. In terms of Section 48 of the Copyrights Act, the certificate issued Exhibit PW1/4, is prima facie evidence of the particulars entered therein in respect of the label, Exhibit PW1/3, and is admissible in the evidence without further proof or production of the original. Since the defendants have been proceed ex parte, there is no rebuttal on the above aspects on the part of the said defendants. As such, the defendants obviously does not have any right to market their goods under the same mark and label as that of the plaintiff company. Issue No. 3 is, therefore, decided in favor of the plaintiff company and against the defendants.
ISSUE NO. 4 :-
34. The plaintiff company has categorically claimed user since the year 1974 which is still subsisting and valid. The registration was got done in 1980. The defendants apart from being ex parte, had even in the written statement not come out with any specific date as corroboration of time, from which they have been using colour scheme, get-up, lay-out which arrangement similar to that of the plaintiff company, which also has a registration under the Copyright Act, in respect of the said label/sticker. The defendants have only mentioned in their written statement that they are engaged in the manufacture of pressure cookers since middle of 1960s and their trademark was registered in 1969 with the Trademark Authorities, without corroborating the said fact in any effective manner. In this view of the matter, the only conclusion possible is that the defendants have deliberately adopted the colour scheme, getup and layout and arrangement of the label of the plaintiff company in respect of the defendant’s Pressure cookers only to create confusion in the trade so that they may pass off their goods as those, of the plaintiff company. The intention of seeking recourse to such deception and confusion, can only with a view to treat upon the goodwill and reputation and profit of the plaintiff company while enhancing their (defendant’s profit), and to earn undue profits as affirmed by the pleadings and affidavits of the plaintiff company.
35. Despite cease and desist notices dated 30.11.90 and 23.11.91, Exhibits PW1/11 and PW1/12, the defendants have failed to desist from their malafide and illegal actions. Since the defendants have been proceeded ex parte, there is no rebuttal on the above aspects on the part of the said defendants. As such, Issue No. 4 is, therefore, decided in favor of the plaintiff company and against the defendants.
36. In view of the above, it stands established that the defendants are passing off their goods as those of the plaintiff company. As such, the defendants are liable to be permanently injuncted and also liable to render accounts.
ISSUE NO. 5 :
37. The plaintiff’s publication “Pressure Cookery and Instructions Book” has been exhibited as Exhibit PW1/9. The plaintiff’s clear cut stand is that this was published on behalf of the plaintiff company since the year 1973, reserving all the rights and copy rights in relation to the same. The defendants have published a cook book titled “APSLEY Pressure Cookery and Instructions Book” which is Exhibit P-2. The plaintiff company has furnished as Exhibit PW1/10, a comparative table of these publications and the same establishes unerringly the verbatim reproduction of substantial passages from the cook book of the plaintiff company by the defendant in its publication. The pleadings of the plaintiff company in this behalf are duly affirmed in para No. 7 of the affidavit by way of evidence. As such, the infringement of the plaintiffs’ copyright stands established in terms of the provisions of Section 2(d), 2(m) and Sections 41 and 51 of the Copyright Act entitles the plaintiff company to the remedy of injunction, damages and accounts under Section 55 of the said Act. Since the defendants have been proceeded ex parte, there is no rebuttal on the above aspects on the part of the said defendants.
38. Apart from the fact that the defendants have been proceeded ex parte, the pleadings and evidence of the plaintiff company goes unrebutted. Even otherwise, the defendants have not been able to establish that at the time of infringement they were not aware of any such copyright subsisting in favor of the plaintiff company. As such, Issue No. 5 is decided in favor of plaintiff and against the defendants.
ISSUE NO. 6 :
39. The defendants having infringed the copyright of the plaintiff company in terms of the provisions of the Section 51 of the Copyright Act, the plaintiffs are entitled to their civil remedies under Section 55 of the Act.
40. The defendants do not have any right to market their goods under the same or similar label.
41. Sine it is neither the defendants goods nor defendants have actually obtained any license in relation to the copyright, the same is held to be infringed.
42. The main object of the Copyrights Act is to give protection to the owner of the copyright from dishonest manufacturers who tries to create any impression or confusion in the minds of the purchasing public to believe that infringed products (such as those of the defendants) are actually of the owner of the copyright (in this case of the plaintiff). The statutory provisions are meant to discourage dishonest manufacturers from trading and/or cashing upon the goodwill and protecting the reputation of the owner of the copyrights such as that of the plaintiff company who has earned the same over a period of time, inter-alia, by incurring huge expenses on advertisement and extensive sales etc. The unjust enrichment or illegal profits by the infringing party (defendants), is a mischief from which the owner of the copyright is to be protected in terms of Section 55 of the Copyrights Act.
43. In view of the above, the plaintiff company is entitled to the relief in the form of permanent injunction restraining the defendants by themselves, their servants, agents, assignees or otherwise from using, in relation to pressure cookers, a get-up of label complained about or any other label deceptively and/or confusion similar to the label of the plaintiff company and restraining them from using in relation to their pressure cookers, any label complaint of or any other labour deceptively and/or happens to be confusingly similar to that of the plaintiff company so as to pass of their pressure cookers as those of the plaintiff company and also restraining defendants from dealing in any manner, whatsoever, with their cook books having passages reproduced from the cook books of the plaintiff company. The defendants are also directed to deliver up to the plaintiff company for destruction all such pressure cookers and books complained against and all accessories and articles employed by the defendants in the manufacture of the offending goods which are in the custody, power, possession and control of the defendants and also to deliver all such cook-books complained about to the plaintiff company, from the custody, control and possession of the defendants. The plaintiff company is also entitled to damages arising upon the rendition of accounts by the defendants.
44. The plaintiff company is also entitled the relief of rendition of true and faithful accounts against the defendants. For the said purpose, Shri Pankaj Aggarwal Advocate resident of C-78 Neeti Bagh, New Delhi is appointed as the Commissioner to go into the accounts and submit a report to this Court within a period of 6 months from today with copies to the parties dusty . His remuneration is fixed tentatively at Rs. 15,000/- excluding the expenses incurred for the said purposes. A preliminary decree to render the accounts is accordingly passed in favor of the plaintiff company and against the defendants accordingly. Decree sheet be drawn up accordingly.
45. List before the Joint Registrar on 10.4.2003 for directions.