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TMI Blog1992 (11) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... gle Judge has found that the plaintiffs/appellant's application under Clause 14 of the Letters Patent for leave to combine the causes of action for infringement of trade mark and for passing off along with the suit for infringement of copyright should not be ordered, he has for that reason also held that this Court has no jurisdiction to entertain the suit with reference to infringement of trade mark and passing off. In the application for injunction restraining the defendant from committing any infringement of the copyright learned Judge has said that prima facie no infringement of copyright has been made out. 3. The plaintiff has claimed that its business established in the year 1912 as manufacturers, marketers and exporters of tea and other consumer goods on a large scale with an annual sales turnover of about ₹ 400 crores has gained very valuable reputation and goodwill especially in the tea trade, one of the popular brands of tea selling with the banner Super Dust Tea since 1968 in various sizes and packets. The marketing of tea with the banner Super Dust Tea was/is being done under four registered trade marks and two other trade marks for which applications h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abovementioned four applications. After notice, the defendant appeared with its return to all the applications. In the applications for interim injunction in the copyright suit, trade mark, passing off and for leave to combine the cause of action the learned single Judge has summarised the defendant's plea as follows: This Court has no jurisdiction since the defendant company is situated and carrying on business at Raipur. The defendant has riot sold even a single packet within the jurisdiction of this Court and the defendant's sales are mostly confined to Madhya Pradesh only. Even the allegation in paragraph 11 of the plaint that the plaintiff has been noticing in markets in the regions of Nagpur and Visakhapatnam, tea packets marketed by the defendants would disentitle it to file the suit in this Court. It is not as if the plaintiff has no branch office in the places where the defendant's products are said to have been seen being sold or that there are no courts in the said places. It is also false to state that the products were seen in the market at Visakhapatnam. The defendant has applied for registration of its trade mark to the Trade Marks Registry at Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as said, it is very easily answerable: There is no doubt that this Court has got jurisdiction to entertain this suit in view of the provision of S.62(2) of the Copyright Act. The plaintiff has made an allegation in the plaint that its copyright has been infringed by the defendant and a prayer for injunction restraining the defendant from committing such infringement is made in the plaint. Hence, the suit is one falling under Chapter XII of the Copyright Act, 1957. Section 62(1) of the Act provides that every suit arising under the said Chapter in respect of the infringement of copyright shall be instituted in the District Court having jurisdiction. Sub-clause (2) of Section 62 of the Act explains that for the purpose of Sub-section (1), a 'District Court having jurisdiction' shall include a District Court within the local limits of whose jurisdiction at the time of the institution of the suit, the person instituting the suit actually and voluntarily resides or carries on business or personally works for gain. It is not in dispute that the plaintiff carries on business within the jurisdiction of this Court at the time of the institution of this suit. In so far as the City ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... language of Sub-section (2) is also significant. The sub-section only includes a Court within whose jurisdiction the plaintiff resides or carries on business etc. It is very clear that the plaintiff is given a choice of forum and he can institute the suit either in the District Court of the place where the defendant resides or carries on business according to the general law or at the place where he himself resides Or carries on business. The section does not say that a suit for an infringement of copyright shall be instituted only in the court within whose jurisdiction the plaintiff resides or carries on business. The district court in whose jurisdiction the alleged cause of action has arisen, that is to say where the defendant has committed an infringement, has also jurisdiction to entertain the suit. It is in that context, the question whether leave should be granted to the plaintiff to combine the three causes of action, two of which admittedly have not arisen within the jurisdiction of this Court, has to be considered. The judicial discretion vested in the court under Clause 14 of the Letters Patent has to be exercised with care and caution. The circumstances which are relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the case that the learned single Judge has discussed in his judgment and we shall presently see as to what may be necessary for attracting Clause 14 of the Letters Patent and when. It is conceded when the suit in one part for the relief as to the copyright is maintainable exercising jurisdiction to amalgamate such causes of action that are closely allied and associated with the trade and business of the plaintiff and defendant in which trade and business the copyright is involved, the court should avoid multiplicity of the suit, and order joinder of causes of action. But, before we say anything further in this behalf, we may extract the relevant provisions of the Copyright Act. Section 14 of the Copyright Act, 1957, gives the meaning of copy right as the exclusive right by virtue of and subject to the provisions of the Act: (a) in the case of a literary, dramatic or musical work, to do and authorise the doing of any of the following Acts, namely: (i) to reproduce the work in any material form; (ii) to publish the work; (iii) to perform the work in public; (iv) produce, reproduce, perform or publish any translation of the work; (v) make any cinematograph film ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was dead, at that date, was at the time of his death, a citizen of India; in the case of an unpublished work other than an architectural work of art, the author is at the date of the making of the work a citizen of India or domiciled in India; and in the case of an architectural work of art, the work is located in India. There is an explanation also, which says: 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. (3) Copyright shall hot subsist- (a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work; (b) in any record made in respect of a literary, dramatic or musical work, if in making the record, copyright in such work has been infringed. (4) The copyright in a cinematograph film or a record 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 record is made. (5) In the case of an architectural work of art, copyright shall subject only in the artistic character and design and shall not extend to processes or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yright is infringed has been dealt with in Section 51 of the Act, which says, Copyright in a work shall be deemed to be infringed-- 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 licence so granted or of any condition imposed by a competent authority under this Act- (i) does anything, the exclusive right to do which is by this act conferred upon the owner of the copyright/or (ii) permits for profit any place to be used for the performance of the work in public where such performance constitutes an infringement of the copyright in the work unless he was not aware and had no reasonable ground for believing that such performance would be an infringement of copyright, or (b) when any person- (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 (ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or (iii) by way of trade exhibits in public, or, (iv) imports into India, any infringing copies of the work: Prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of green, white, pink, red, etc. (iv) Floral get-up consisting of two Roses one Red and another Pink with stems and few other flowers in a row. According to the plaint, the unique colour combination of green background, the words 'Super Dust Tea' in white and the floral get-up in different shades of red and pink are the associated trade marks, four registered and two unregistered with slight variations in the get-up have a singular unique distinctive identity, in conception, colour scheme, lettering of the words and the floral get-up and in January, 1987, it introduced an yellow circle in which the words 'Super Dust Tea' are printed in red and green. It has left no manner of doubt in the plaint that it is the publisher of the work, and in the absence of any identity of the authors disclosed or established, the definition in Section 54(b) of the Copyright Act, is attracted upon which the above rule of presumption should be invoked. It is indeed not at all essential for a publisher, in view of the above, to set out in the plaint the details relating to the ownership of the copyright. It is not possible for the said reason, to agree with the observations of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e District Court of the place where the defendant resides or carries on business according to the general law or at the place where he himself resides or carries on business. The section does not say that a suit for an infringement of copyright shall be instituted only in the Court within whose jurisdiction the plaintiff resides or carries on business. The District Court in whose jurisdiction the alleged cause of action has arisen, that is to say, where the defendant has committed an infringement, has also jurisdiction to entertain the suit. Having said as above, learned single Judge has posed the question whether leave should be granted to the plaintiff to combine the three causes, of action two of which admittedly have not arisen within the jurisdiction of this Court and said, The Judicial discretion vested in the Court under Clause 14 of the Letters Patent has to be exercised with care and caution. The circumstances which are relevant to be considered in exercising the discretion are, whether the plaintiff is in such a situation, financially or otherwise, that it will be very difficult for him to institute the suit at the place where the cause of action has arisen or where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... several causes of action should not be joined together in one suit, and to make such order for trial of the same as the said High Court shall deem fit. It is conceded and the learned single Judge has also found that the copyright action in this Court is maintainable and there is no defect in the suit in this behalf. We have found that it was only because the court's attention was not drawn to the definition of the expression 'owner of copyright' in Section 54 of the Copyright Act, Court proceeded on the footing that it was necessary that particulars as to who is the author who has claimed the copyright and how the copyright has been transferred to the plaintiff, are essential. Once it is found that copyright suit is maintainable why the plaintiff decided to sue in this Court can hardly be a question to bother any person. Plaintiff has filed the suit in a proper court. The suit has no defect. The suit shall proceed arid the defendant in the suit thus shall have to contest and finally take the judgment of the Court in the copyright action. If other issues for which separate action can be taken but this Court shall be competent to go into them only if they are causes o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, in Halsbury's Laws of England, Third Edition, Vol.21 at pages 364 and 365, the balance of convenience is stated as follows: Where any doubt exists as to the plaintiffs right, or/his right is not disputed, but its violation is denied, the court in determining whether an interlocutory injunction should be granted takes into consideration the balance of convenience to the parties and the nature of the injury which the defendant, on the one hand, would suffer if the injunction was granted and he should ultimately turn out to be right, and that which the plaintiff on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right. The burden of proof that the inconvenience which the plaintiff will suffer by the refusal of the injunction is greater than that which the defendant will suffer, if it is granted, lies on the plaintiff. We do not say that in considering the balance of convenience as to the forum for instituting a suit, it would be necessary (like the principles of injunction) to see the ultimate injury that a party may suffer but we do find support to our view and we state in no uncertain terms that in deciding whether to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit at a forum of his choice and that person exercises his discretion and chooses a particular court for action he abuses the process of the Court. Learned single Judge has noticed and rightly said that S. 62 of the Copyright Act permits a deviation from the general law. But then, that gives a discretion to the litigant to decide the forum. It is his choice and not the choice of the court. No exception can be taken if his discretion is not to the liking of the court. Learned single Judge has in this behalf said at quite a few places in his judgment that the court may not in such cases be in a position to dismiss the suit as not maintainable or is one filed in a court without jurisdiction yet has said, 'but the court will certainly refuse to grant relief to him'. We are recording our disagreement. No Judge can afford to deny a relief if in law and in equity such relief is available to a party, evidently not for the reason that he does not like the choice of the forum and the action in court by a litigant. Since we have taken the view that the copyright action emerges from the same bundle of facts from which the trade mark and passing off actions emerge and the copyright act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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