9911796707
TMI Blog1991 (1) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... remained in the register of copy right. The case of the appellant is that they are manufacturers of electrical goods over long period. They have the trade mark of 'Sharp' with the formidable sale publicity all over India since 1959. The said trade mark was registered under the Trade and Merchandise Marks Act, 1958, with effect from 7-12-1961. It is currently valid against anybody according to the provisions of the Trade and Merchandise Marks Law. The said registered trade mark is numbered as No. 206181, which is annexed as 'B' 'B-1'. In view of the vast reputation and extensive good-will built up in the 'Sharp' mark they claim a copy right interest in all their advertisement with the artist work of 'Sharp' registered as Trade Mark No. 206181, under the said Act. 4. It is averred that the appellant came across a copy right caution notice published in 'Indian Express' news paper on 15-10-1979 issued by the respondent, as to the copy right of 'Sharp Tool' registered as No. 251165/79 dt. 29-8-1979 annexed as 'C', under the Copyright Act, 1957. It is stated that the subject matter of registration of copyright under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he word 'Sharp' in semi-circular form, but the manner in which the respondent obtained registration of the words Sharp Tools on 29th Aug. 1979 is entirely different from the petitioner's copy right. Being aggrieved by the Order of the Board, the appellant has preferred this appeal. 7. Mr. K. G. Raghavan, learned counsel for the appellant has strenuously urged the following points. That the copyright Board on wrong assumption of facts and law erred in holding that the artistic work 'Sharp' of the appellant infringed by the respondent though he has made a colourable imitation and reproduction of the appellant's essential feature 'Sharp'. The Board should have held that the registration (of?) the words 'Sharp Tools' under the Act was erroneous and should have cancelled it as the manner of depiction of 'Sharp Tools' infringes the copy right of the appellant. He further submitted that the Board failed to appreciate that there is substantial identity and similarities in the style and manner of writing the words 'Sharp Tools' by the respondent, with the style and manner in which the appellant has been writing the word 'S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... literature and art. Its object is to protect the writer and artist from the unlawful reproduction of his material. It is concerned only with the copying of physical material and not with the reproduction of ideas and it does not give a monopoly to any particular form of words. If it could be shown that two precisely similar works were in fact produced wholly, independently from one another, the author of the work that was published first would have no right to restrain the publication of the other author's independent and original work. 11. For appreciation and determination of the contentions raised before us, it is necessary to notice certain relevant provisions of the Copyright Act, 1957. Section 2(c) defines artistic works. It means : (i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; (ii) an architectural work of art; and (iii) any other work of artistic craftsmanship. Section 2(d) defines Author . It means : (i) in relation to a literary or dramatic work, the author of the work; (ii) in relation to a musical work, the composer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our earnest consideration to the submissions made by the learned counsel for the parties. The appellant did make an application to the Board under Sec. 50 of the Act, for rectification of registration (of?) copy right of respondent 'Sharp Tools' on the ground that the said work infringes his copy right 'Sharp' which was authorised and published by them much earlier to the registration of the copy right of the respondent. The appellant maintains that the copy right 'Sharp Tools' of the respondent registered under the Copy Right Act, is neither -- reproduction nor adaptation, and there was no infringement in the copy right of the appellant. 15. Rival contentions of the parties give rise to the point for consideration by this Court is.-- Whether the appellant's copyright of the work (artistic work) 'Sharp' is infringed by the respondent's work 'Sharp Tools' which is registered under the Copyright Act. Answer to the question depends upon whether the work of 'Sharp Tools' of the respondent is copy or colourable imitation or adoption or reproduction of the work Sharp of the appellant. 16. In the case of Mohini Mohan S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here, however, apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence. 6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above. 18. Similarly in the case of Kenrick Co., v. Lawrence and Co., (1890) 25 Q.B.D. 99, it was however, held that there was no copyright in ideas, schemes or systems. In that connection it has observed as follows : It must always be remembered that, ideas, however original are not protected under the Copyright Act. Consequently where a very simple diagram embodies an original idea, it is the diagram and not the idea which is protected. Thus a plaintiff conceived the idea of printing and publishing cards bearing a representation of a hand holding a pencil in the act of completing a cross within the square. With a view to such cards being used at election by illiterate voters and procured an artist to make un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is to be judged by the eye, must get the suggestion that it is the plaintiff's picture. One picture said to be a copy of another picture finds a place in the reproduction. 22. On a conspectus of the scheme of the Act, as disclosed in the provisions reproduced above and the conspectus of facts given by the parties and the various decisions quoted and referred to in support of the rival contentions of the parties as to the infringement of the copy right, it takes us to the core of question whether there was infringement of copy right of the appellant's work (artistic work) 'Sharp' by the respondent's work 'Sharp Tools'. In otherwords, whether the respondent's registration of 'Sharp Tools' under the Act, really reproduced the work 'Sharp' of the appellant and, therefore, there is infringement of his right. 23. One of the surest test to determine whether or not there has been a violation of copy right is to see if the reader, spectator, or the viewer after having read or seen both the works would be clearly of the opinion and get an unmistakable impression that the subsequent work appears to be a copy of the first. In otherwords, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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