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TMI Blog2011 (12) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... Golden Line running around the Mug, in India. The aforesaid device is stated to be extremely distinctive of the plaintiff being used on all packages, wrappers/labels, publicity materials etc. in respect of coffee being sold by the plaintiffs. It is alleged that a mere look of the aforesaid device establishes a connection with 'NESCAFE' Coffee of the plaintiffs and, therefore, the device has acquired a secondary meaning and mark identification of the plaintiffs. The plaintiffs claim to be selling the 'NESCAFE' Instant Coffee since 1983. The plaintiffs also claim to be using the Red Mug as a standalone brand for the coffee. This is also the case of the plaintiff is that this Red Mug Device was created by one Mr. Wolf-rudi von der Emden, who later assigned the copyrights in the aforesaid work to the plaintiffs. 3. The defendant is engaged in the business of marketing of coffee. The defendant is selling coffee under the brand name MR. using a label/device, depicting a red mug full of black coffee. The packaging being used by the defendant to sell coffee is alleged to be infringing copyright of the plaintiff company since; (i) wrapper/label of the defendants bears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard, she has referred to a TV commercial Ex.PW-1/7 which is telecast on Indian TV channels, in which the aforesaid device has been extensively used. She has claimed that the aforesaid red mug device is also being used by the plaintiff as a standalone brand. According to her, the aforesaid device has also been registered in India vide Registration No. 1199626 in class 30 which includes coffee. 6. Ex.PW-1/18 is the declaration by Mr Wolf-rudi von der Emden on 04th July, 2003, whereby he claimed to have created the red mark device, shown on the document. They are two red mark devices one created in the year 1978 which does not have a golden line around the mug and the other is the device created in the year 1990 which has a golden line running around with mug. In fact, the shape of the mug in the device of 1990 is different from the shape of the mug in the device of 1978. 7. I see no reason to disbelieve the testimony of Ms Venita Gabriel and the documents filed by the plaintiffs which show that the red label device being used by the plaintiffs was created by Mr Wolf-rudi von der Emden in the year 1990. The aforesaid red mug device was created by Mr Wolf-rudi von der Emden in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises. 5. Where 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. Supreme Court quoted with approval the following observations made by Copinger in his book on copyright (11th Edition): What is protected is not original thought or information, but the original expression of thought or information in some concrete form. Consequently, it is only an infringement if the defendant has made an unlawful use of the form in which the thought or information is expressed. The defendant must to be liable, have made a substantial use of this form; he is not liable if he has taken from the work the essential, ideas however original, and expressed the idea in his own form, or used the idea for his own purposes. 9. Though the defendant has claimed that since no artistic work is involved i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f, any person seeking to make a dishonest use of the work of the plaintiff would make some changes here and there while copying the work of the plaintiff, so that in the event of being questioned, he may claim that the work being used by him not being an exact copy of the work of the plaintiff does not constitute infringement of the copyright of the plaintiff. The test to be applied by the Court, wherever infringement of copyright is alleged, is to ascertain not as to whether the work of the defendant is an exact re-production of the work of the plaintiff, but, whether a person who comes across the work of the defendant would form an opinion that it was the work of the plaintiffs or not. There is no test laid down to decide as to what constitute re-production of a substantial part of the work. The test which the Courts have been applying in such cases is as to effect produced on the mind of the person who has seen the work of the plaintiff and also comes across the work of the defendant. The degree of resemblance between two works must be such that it suggests an impression, in the mind of the observer, that the work of the defendant is, in fact, the work of the plaintiff. The Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff claimed that use of the logo 'M' by the defendant/appellant was likely to cause confusion and deception since on account of use of the logo 'M', people were likely to believe that the defendant has some connection with the plaintiff, in fact there being no connection whatsoever. While registering the logo 'M' of the plaintiff, the Trademark Registry had imposed a disclaimer on the plaintiffs for exclusive use of the letter 'M' except substantially as shown in the representation. One contention of the appellant/defendant was that it had a copyright registration in its favour which the plaintiff/respondent did not have. It was also contended that the goods of the appellant and the respondent being altogether different, there was no likelihood of an unwary purchaser of average intelligence being misled by the use of the trademark logo 'M' by the appellant/defendant. The plaintiff on the other hand claimed ownership of the artistic work in logo 'M' in the distinctive style and design of the famous golden arches created by its Chief Marketing Officer, Mr Paul Scharge and that this work constituted an original artistic work within the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginates from the plaintiff or has been manufactured under licence or in collaboration or association with it and that is why the impugned mark has been used on that product. If the customer on account of the use of the impugned mark is likely to get confused with respect to the source of the product, that itself would constitute infringement within the meaning of Section 29(2) of Trademarks Act, wherever the goods on which the impugned trademark is used are identical to the goods in respect of which the plaintiff is using its registered trademark. 14. In my view, mere registration under Copyright Act does not authorize the defendant to use the trademark of the plaintiff if it is found that the mark being used by him is identical or similar to the registered trademark of the plaintiff or it is proved that use of the impugned mark by him on identical goods is likely to cause confusion or create an impression of association with the registered trademark of the plaintiff. Registration under Copyright Act, in such a situation would be no defence to the charge of infringement and would not take the case out of the purview of Section 29(1) and (2) of Trademarks Act, 1999. Moreover ..... X X X X Extracts X X X X X X X X Extracts X X X X
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