{"id":190203,"date":"2005-09-21T00:00:00","date_gmt":"2005-09-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-brihan-maharashtra-sugar-vs-meher-distilleries-pvt-ltd-a-on-21-september-2005"},"modified":"2016-05-16T11:16:10","modified_gmt":"2016-05-16T05:46:10","slug":"the-brihan-maharashtra-sugar-vs-meher-distilleries-pvt-ltd-a-on-21-september-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-brihan-maharashtra-sugar-vs-meher-distilleries-pvt-ltd-a-on-21-september-2005","title":{"rendered":"The Brihan Maharashtra Sugar … vs Meher Distilleries Pvt. Ltd. A … on 21 September, 2005"},"content":{"rendered":"
Bombay High Court<\/div>\n
The Brihan Maharashtra Sugar … vs Meher Distilleries Pvt. Ltd. A … on 21 September, 2005<\/div>\n
Equivalent citations: 2006 (2) BomCR 103, 2006 (1) MhLj 344, 2006 (33) PTC 188 Bom<\/div>\n
Author: D Deshpande<\/div>\n
Bench: D Deshpande<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
D.G. Deshpande, J.<\/p>\n
1. Heard Counsel for the Appellants and the  Respondents.\n<\/p>\n
 2. This Appeal was admitted on 27.4.2004 and  hearing was expedited looking to the issue involved.  Appellants are the original Defendants and  Respondents are original Plaintiffs. Plaintiffs  filed a suit before the Additional District Judge,  Palghar, complaining of infringement of the Copy  Right or infringement of rights conferred under The Copy Right Act, 1957, (hereinafter referred to as  “the said Act”). With reference to Section 62 of  the said Act, dispute is about the labels on the  liquor bottles. Colour copies of the said liquor  bottles, infringement of which was complained, were  tendered by the Counsel for the Appellants. It is  at Exhibit 12A. The label of the plaintiffs as well  as the label of the defendants – appellants is shown  there. It was the case of the plaintiffs that they  are the owners of copyright in artistic work in  label “Prince Santra” which is shown in Exhibit 12A  and I have marked it as L-1 for easy reference. L-2  is the label used by the defendants as marked by me,  under my initials.\n<\/p>\n
 3. The plaintiffs raised many contentions but  the main contention is whether the plaintiffs are  owners of the artistic work “Prince Santa” label L-1  and whether the defendants have copied the said  label and committed infringement of the plaintiffs  copyright. The defendants denied all the  contentions of the plaintiffs. According to them,  firstly, the plaintiffs are not the owner of the  copyright in the artistic work of “Prince Santra”,  L-1. Secondly, there is absolutely no artistic work  in L-1. Thirdly, on the face of it, both the labels  are totally distinct and separate. There is nothing  which can mislead the purchasers of country liquor and  a bare perusal and comparison of the two labels  L-1  and L-2 is sufficient for any court to come  to  the  same conclusion, but the trial court  committed grave mistake and error in finding resemblance in  the two labels and granting decree in favour of the  Plaintiffs. Defendants – Appellants were restrained  perpetually from infringing the copyright of the  plaintiffs’ original artistic work in the label  Prince Santra, L-1 and they are also directed to  deliver copies of label L-2 to the plaintiffs with  dyes, drawings, packing material, promotional  material etc. and, lastly, if the defendants failed  to comply with the order, the Commissioner of State  Prohibition and Excise, was given powers to  implement this order. It is against this judgment  and decree, that the present appeal is filed.\n<\/p>\n
 4. Counsel for the appellants, firstly,  contended that any infringement of the copyright can  be claimed only if there is a similarity. He relied  upon Sections 13, 45, 48 of the said Act, and then  contended that in the label of the plaintiffs L-1  there is absolutely no artistic work. He also  contended that what was disputed was breach of any  infringement of copyright and not a dispute about  passing of. Exhibit 12A was given to me. He  contended that Exhibit 12A which shows different  labels of different companies regarding liquor made  from Santra and Orange and contended that since  oranges are of orange colour, all the manufactures  have used orange as the basis or background colour  of their labels. There is a difference in the shed  of orange only in respect of two labels from Exhibit  12-A. Those labels are all in Marathi. That  difference is in respect of label of “Desi Daru  Rethara”, which is more yellowish than orange and  another label “Desi Daru Santra” which is faint  orange. Otherwise out of 9 labels, all the 7 other  labels have used orange as a base colour on their  labels. He also contended that the names of the  product of the plaintiffs and the defendants were  totally different. The plaintiffs product was named  as “Prince Santra” and the defendants product was  named as “No.1 Tango Santra”. In the label of the  plaintiffs there was a red border over the label,  whereas in the label of the defendants it was a  golden square border, other writings on both the  labels was totally different in different fonts,  shape, size. Therefore, according to him, the label  L-1 and L-2, are totally fundamentally and basically  different. In the label of the defendants there is  absolutely no artistic work and therefore the  plaintiffs were not entitled for any order in their  favour, and on this visual comparison only, the  claim and contention of the plaintiffs in the suit  should have been rejected. Exhibit ‘7 was also  given to me, which shows the plaintiffs label on the  right side and defendants label on the left side.\n<\/p>\n
 5. Counsel for the appellants also contended  that the plaintiffs have utterly failed to prove  their ownership under the said Act in respect of L-1  because they did not examine the author or the  artist who prepared their label L-1. He also  contended that there is no evidence on record to  show that the plaintiffs had purchased the artistic  work. According to him and from the evidence, there  was nothing with the plaintiffs to show that they  had paid anything to the said artist for purchasing  so-called artistic work nor the artist was examined  in that regard. He also contended that the original  work of art of L-1 was not produced before the  court.\n<\/p>\n
 6. The next submission of the counsel for the  appellants was about jurisdiction, He referred to  Section 62, which reads as under :\n<\/p>\n
“62. Jurisdiction of Court Over Metter Arising under this Chapter –\n<\/p>\n
(1) Every suit  or other civil proceeding arising under this  Chapter in respect of the infringement of  copyright in any work or the infringement of  any other right conferred by this Act shall  be instituted in the district court having  jurisdiction.\n<\/p>\n
 (2) For the purpose of sub-section (1), a  “district court having jurisdiction” shall,  notwithstanding anything contained in the  Code of Civil Procedure, 1908 (5 of 1908),  or any other law for the time being in  force, include a district court within the  local limits of whose jurisdiction, at the  time of the institution of the suit or other  proceeding, the person instituting the suit  or other proceeding or, where there are more  than one such persons, any of them actually  and voluntarily resides or carries on  business or personally works for gain.”\n<\/p>\n
He contended that this sub section (2) of Section 62  had over riding effect over the provisions of the  Civil Procedure Code regarding jurisdiction and  jurisdiction was conferred to the District Court  within the local limits of whose jurisdiction, at  the time of the institution of the suit or other  proceeding… or, where there are  more than one such persons, any of them actually and  voluntarily resides or carries on business or  personally works for gain. He contended that none  of the plaintiffs fulfil this criteria and therefore  Palghar Court had no jurisdiction. He pointed out  that the Plaintiff No.1 Meher Distilleries Pvt.  Ltd. was not an exclusive licensee. Plaintiff No.2  was residing at Nashik. Plaintiff No.3 was residing  in Mumbai, and therefore none of the persons were  residing or carrying on business in Thane District.  The contention of the plaintiff No.1 that they were  having factory at Village Aswa, Tal : Dahanu, Dist  : Thane, was totally wrong, because they were not  the exclusive licensees of this copyright. My  attention was also drawn to Section 54 where the  owner of the copyright has been mean to include an  exclusive licensee as per Section 54(a).\n<\/p>\n
 7. On the other hand, Mr. Chitnis for the  plaintiffs – respondents contended that there was no  necessity to examine the artist who had prepared a  label because there was no dispute of the plaintiffs  that the artist or vice versa and the defendants  have no concern with the artist in that event. He  also contended that certificate of copyright was in  favour of the plaintiffs under Section 48, which  lays down that the Registrar of Copyrights shall be  prima facie evidence and certificate shall be  admissible without further proof of production of  the original. He also contended that the  infringement of the plaintiffs copyright was  intellectually done to deceive public. He relied  upon the judgment of the Madras High Court  C. Cunniah and Co. by partners M. Anjaneyulu and others vs. Balraj and Co. by partners S. Rajaratnam Chettiar and another  <\/p>\n
 8. Regarding jurisdiction Mr. Chitnis  contended that as to who should first institute the  suit was not given in Section 62 relied upon by the  appellants. According to Mr. Chitnis L-2 label of  the defendants is a direct infringement of the copy  right of the plaintiffs and the trial court was  justified in decreeing the suit. He therefore fully  supported the judgment of the trial court.\n<\/p>\n
 9. Since both the parties referred to certain  Sections of the said Act, I am reproducing Sections,  viz. Sections 13, 45, 48, 55, 57 and 62 :\n<\/p>\n
 “13. Works in which copyright subsists.-\n<\/p>\n
(1) Subject to the provisions of this  section and the other provisions of this  Act, copyright shall subsist throughout  India in the following classes of works,  that is to say,-\n<\/p>\n
(a) original literary, dramatic, musical and artistic works;\n<\/p>\n
 (b) cinematograph films, and<\/p>\n
 (c) [sound recording].\n<\/p>\n
 (2) Copyright shall not subsist in any work  specified in sub-section (1), other than a  work to which the provisions of Section 40  or section 41 apply, unless,-\n<\/p>\n
(i) in the case of a published work, the  work is first published in India, or where  the work is first published outside India,  the author is at the date of such  publication, or in a case where the author  was dead at that date, was at the time of  his death, a citizen of India;\n<\/p>\n
 (ii) in the case of an unpublished work  other than [work of architecture], the  author is at the date of the making of the  work a citizen of India or domiciled in  India; and <\/p>\n
 (iii) in the case of [work of architecture], the work is located in India.\n<\/p>\n
 Explanation.- In the case of a work of joint  authorship, the conditions conferring  copyright specified in this sub-section  shall be satisfied by all the authors of the  work.\n<\/p>\n
 (3) Copyright shall not subsist-\n<\/p>\n
(a) in any cinematograph film if a  substantial part of the film is an  infringement of the copyright in any other  work;\n<\/p>\n
 (b) in any [sound recording] made in respect of a literary, dramatic or musical work, if  in making the [sound recording], copyright  in such work has been infringed.\n<\/p>\n
 (4) The copy right in a cinematograph film  or a [sound recording] shall not affect the  separate copyright in any work in respect of  which or a substantial part of which, the  film, or, as the case may be, the [sound  recording] is made.\n<\/p>\n
 (5) In the case of [work of architecture],  copyright shall subsist only in the artistic  character and design and shall not extend to  processes or methods of construction.”\n<\/p>\n
 “45. Entries in register of Copyrights.-\n<\/p>\n
(1) The author or publisher of, or the owner of or other person interested in the  copyright in, any work may make an  application in the prescribed form  accompanied by the prescribed fee to the  Registrar of Copyrights for entering  particulars of the work in the Register of  Copyrights:\n<\/p>\n
 [Provided that in respect of an artistic  work which is used or is capable of being  used in relation to any goods, the  application shall include a statement to  that effect and shall be accompanied by a  certificate from the Registrar of Trade  Marks referred to in Section 4 of The Trade  and Merchandise Marks Act, 1958 (43 of  1958), to the effect that no trade mark  identical with or deceptively similar to  such artistic work has been registered under  that Act in the name of, or that no  application has been made under that Act for  such registration by, any person other than  the applicant.] <\/p>\n
 (2) On receipt of an application in respect  of any work under sub-section (1), the  Registrar of Copyrights may, after holding  such inquiry as he may deem fit, enter the  particulars of the work in the Registrar of  Copyrights.”\n<\/p>\n
“48. Register of Copyrights to be primafacie evidence of particulars entered therein.-\n<\/p>\n
 The Register of Copyrights shall  be prima facie evidence of the particulars  entered therein and documents purporting to  be copies of any entries therein, or  extracts therefrom certified by the  Registrar of Copyrights and sealed with the  seal of the Copyright Office shall be  admissible in evidence in all courts without  further proof or production of the original.\n<\/p>\n
 “55. Civil remedies for infringement of Copyright.-\n<\/p>\n
 (1) Where copyright in any work  has been infringed, the owner of the  copyright shall, except as otherwise  provided by this Act, be entitled to all  such remedies by way of injunction, damages,  accounts and otherwise as are or may be  conferred by law for the infringement of a  right:\n<\/p>\n
 Provided that if the defendant proves that  at the date of the infringement he was not  aware and had no reasonable ground for  believing that copyright subsisted in the  work, the plaintiff shall not be entitled to  any remedy other than an injunction in  respect of the infringement and a decree for  the whole or part of the profits made by the  defendant by the sale of the infringing  copies as the court may in the circumstances  deem reasonable.\n<\/p>\n
 (2) Where, in the case of a literary,  dramatic, musical or artistic work, a name  purporting to be that to the author or the  publisher, as the case may be, appears on  copies of the work published, or, in the  case of an artistic work, appeared on the  work when it was made, the person whose name  so appears or appeared shall, in any  proceeding in respect of infringement of  copyright in such work, be presumed, unless  the contrary is proved, to be the author or  the publisher of the work, as the case may  be.\n<\/p>\n
 (3) The costs of all parties in any  proceedings in respect of the infringement  of copyright shall be in the discretion of  the court.\n<\/p>\n
 “57. Author’s special right.-\n<\/p>\n
 [(1)  Independently of the author’s copyright and  even after the assignment either wholly or  partially of the said copyright, the author  of a work shall have the right  <\/p>\n
(a) to claim authorship of the work; and <\/p>\n
 (b) to restrain or claim damages in respect  of any distortion, mutilation, modification  or other act in relation to the said work  which is done before the expiration of the  term of copyright if such distortion,  mutilation, modification or other act would  be prejudicial to his honour or reputation:\n<\/p>\n
 Provided that the author shall not have any  right to restrain of claim damages in  respect of any adaptation of a computer  programme to which clause (aa) of sub  section (1) of section 52 applies.\n<\/p>\n
 Explanation.-Failure to display a work or  to display it to the satisfaction of the  author shall not be deemed to be an  infringement of the rights conferred by this  section.] <\/p>\n
 (2) The right conferred upon an author of a  work by sub-section (1), other than the  right to claim authorship of the work, may  be exercised by the legal representatives of  the author.\n<\/p>\n
“62. Jurisdiction of court over matters arising under this Chapter.-\n<\/p>\n
(1) Every suit  or other civil proceeding arising under this  Chapter in respect of the infringement of  copyright in any work or the infringement of  any other right conferred by this Act shall  be instituted in the district court having  jurisdiction.\n<\/p>\n
 (2) For the purpose of sub-section (1), a  “district court having jurisdiction” shall,  notwithstanding anything contained in the  Code of Civil Procedure, 1908 (5 of 1908),  or any other law for the time being in  force, include a district court within the  local limits of whose jurisdiction, at the  time of the institution of the suit or other  proceeding, the person instituting the suit  or other proceeding or, where there are more  than one such persons, any of them actually  and voluntarily resides or carries on  business or personally works for gain.”\n<\/p>\n
 To sum up the provisions of the aforesaid Sections,  Section 13 is in respect of the works in which  copyright subsists. Sub Section (1)(a) which was  relied upon by both the Counsels is about literary,  dramatic, musical and artistic works. According to  the plaintiffs L-1 is the original artistic work or  artistic work in respect of which the plaintiffs has  a copyright and according to the defendants L-1 is  not at all an artistic work, and, secondly, there is  no copyright with the plaintiffs about the same.  Thirdly, there is no infringement of copyright by  the defendants because their label L-2 is totally  different with not even 5% similarity, excepting the  background colour of the label. Section 45, as seen  above, is about entries in the Register of  Copyrights. The Registrar is given power to make  enquiry and enter the particulars of the work in the  register of copyrights. Section 48 is giving prima  facie value to the Registrar of copyrights and  admissibility in evidence without further proof of  production of original. Section 55 is about the  civil remedy available for infringement of  copyright. Then Section 57 speaks about the special  right and residuary rights after assignment.\n<\/p>\n
 Section 62(2) is about jurisdiction of the courts  over the matters.\n<\/p>\n
 10. Apart from the aforesaid Section Chapter XI  of the said Act includes Section 51 which lays down  the circumstances in which the copyright can be said  to have been infringed or shall be deemed to have  been infringed. Therefore, it is necessary to  reproduce the said Section as under:\n<\/p>\n
 “51. When copyright infringed.- Copyright  in a work shall be deemed to be infringed  <\/p>\n
(a) when any person, without a licence  granted by the owner of the copyright or the  Registrar of Copyrights under this Act or in  contravention of the conditions of a license  so granted or of any condition imposed by a  competent authority under this Act <\/p>\n
(i) does anything, the exclusive right to do which is by this Act conferred upon the  owner of the copyright, or <\/p>\n
 (ii) permits for profit any place to be used for the communication of the work to the  public where such communication constitutes  an infringement of the copyright in the  work, unless he was not aware and had no  reasonable ground for believing that such  communication to the pubic would be an  infringement of copyright; or] <\/p>\n
 (b) when any person-\n<\/p>\n
(i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or  offers for sale or hire, or <\/p>\n
 (ii) distributes either for the purpose of  trade or to such an extent as to affect  prejudicially the owner of the copyright, or <\/p>\n
 (iii) by way of trade exhibits in public, or<\/p>\n
 (iv) imports [****] into India,<\/p>\n
 any infringing copies of the work :\n<\/p>\n
 [Provided that nothing in sub-clause (iv)  shall apply to the import of one copy of any  work, for the private and domestic use of  the importer.] <\/p>\n
 Explanation.-For the purposes of this  section, the reproduction of a literary,  dramatic, musical or artistic work in the  form of a cinematograph film shall be deemed  to be an “infringing copy.”\n<\/p>\n
 11. In my opinion, the crucial question is not  whether the plaintiffs have a copyright in the label  L-1 but the question is whether L-2 is a  infringement of the copyright of the plaintiffs  because of similarity or artistic similarity and the  answer has to be in the negative. No skill or  expertise is required to come to this conclusion.\n<\/p>\n
 The comparison and perusal of the two labels i.e.  L-1 of the plaintiffs and L-2 of the defendants, is  sufficient to come to these conclusions. Following  are the specializations in respect of L-1 :\n<\/p>\n
 a) background of the label is orange.\n<\/p>\n
 b) there is a rectangular viz. round corner  border in red.\n<\/p>\n
 c) the word “Desi Daru” is printed in black.\n<\/p>\n
 d) Words “Prince Santra” are printed in  white.\n<\/p>\n
 e) the name of the dealers is printed in  white and all other printed material is in  black, and perhaps there is a photograph of  orange at the centre or some mark in red.\n<\/p>\n
 So far as label L-2 is concerned, the following are  the specializations:\n<\/p>\n
 a) the background is orange.\n<\/p>\n
 b) the border is golden orange – big square.\n<\/p>\n
 c) Word “Desi Daru” is printed in white.\n<\/p>\n
 d) the name of the product is totally  different. It is “No. 1 Tango Santra”, it  is in golden square with soft round, name  appears is in orange.\n<\/p>\n
 e) every other thing is printed in white.\n<\/p>\n
 Except the background in both the labels, which is  orange, there is absolutely no similarity. By no  stretch of imagination it can be said that label L-2  is the copy of label L-1. They are distinct and  separate. Distinction has been pointed out by me  that is in respect of each and every aspect of the  label excepting the background colour, and the most  important thing is the name of the products are  totally  different  with no similarity.  Plaintiffs  product  is known as “Prince Santra” and  Defendants  product is known as “No.1 Tango Santra.\n<\/p>\n
 12. Now use of the orange colour by defendant  No.2 as a background colour on their label, cannot  be said to be infringement for two reasons, the use  of orange colour for the label is not an artistic  creation and in all other labels which are  reproduced on Exhibit 12A of other manufactures of a  country liquor have used colour orange as background  colour, for their labels, therefore, in the label  L-2 there is no infringement even to the extent of  5%, I have intentionally reproduced Section 51 as to  when the copyright is to be infringed. The case of  the plaintiffs does not fall in any of the  categories. If the labels of the plaintiffs and  that of the defendants i.e. L-1 and L-2 had some  similarities or it was misleading, if L-2 was  capable of being a copy of L-1, then the plaintiff  could have succeeded in proving infringement. But  not even 5% is the similarity between the two  labels.\n<\/p>\n
 13. Secondly, even if the plaintiffs have a  copyright about L-1, there is absolutely no artistic  work in preparing L-1. Regarding any other piece of  art, there could not be only many different opinions  as to whether a particular work is an artistic work  or not. But regarding L-1 it cannot be said that  there  is anything which can be said is an  artistic  work.  Choosing orange as background colour in  the  label  or putting red border cannot be called as  an  artistic work, no skill or specialization is  required. Same is the case with printing name and  other material on the label. Same is the case with  the label of the defendant No.2. There is  absolutely nothing in the said label L-1 which can  be said to be an artistic work.\n<\/p>\n
 14. Therefore, when after comparison of the  labels L-1 and L-2, any prudent man, as is required  by the Evidence Act would come to the conclusion  that there is absolutely no similarity between the  two and L-2 cannot be considered or taken as a copy  or reproduction of L-1, then it is not at all a case  of infringement of copyright of the plaintiffs. In  view of this conclusion, whether the plaintiffs is  the owner of the particular mark or exclusive  licensee and whether the Palghar Court had  jurisdiction, becomes totally insignificant.\n<\/p>\n
 15. Mr. Chitnis relied upon judgment of Madras  High Court, as referred above, in order to show that  defendants label L-2 is a copy. Wherein in  paragraph 7 word “copy” is referred to as under :\n<\/p>\n
 “A copy is that which comes so near to the original a to suggest that original to the mind of every person seeing it.”\n<\/p>\n
 This definition of the word “copy” completely  falsifies the case of the plaintiffs. There is no  resemblance whatsoever between the two labels  excepting the background colour orange. In view of  this matter, the judgment of the trial court is  patently wrong. The findings of the trial court on  vital issues Nos. 6, 7 and 8 are perverse, these  findings are set aside. Issue Nos. 11, 12 and 13  are required to be held in favour of the Appellants  -Defendants.\n<\/p>\n
 16. In view of this, appeal is allowed.  judgment and decree of the trial court is set aside  and the suit of the plaintiffs is dismissed with  costs throughout.\n<\/p>\n
After this order was pronounced, counsel for the  Respondents prayed for stay of this order. Prayer  for stay is rejected.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court The Brihan Maharashtra Sugar … vs Meher Distilleries Pvt. Ltd. A … on 21 September, 2005 Equivalent citations: 2006 (2) BomCR 103, 2006 (1) MhLj 344, 2006 (33) PTC 188 Bom Author: D Deshpande Bench: D Deshpande JUDGMENT D.G. Deshpande, J. 1. Heard Counsel for the Appellants and the Respondents. 2. This […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-190203","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nThe Brihan Maharashtra Sugar ... vs Meher Distilleries Pvt. Ltd. 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