India: Artistic Work Under Copyright Law: Roderick John Andrew Mackenzie v. Himalayan Heli Services Pvt. Ltd

Last Updated: 26 March 2019
Article by S.S. Rana & Co. Advocates

In the present case, the Delhi High Court noted that Roderick John Andrew Mackenzie (hereinafter referred to as "the Plaintiff") had merely contributed to an aspect of the artistic work whereas the copyright in a work would exist only for the composite mark. Accordingly, the Court observed that none of the parties had copyright in the artistic work.


  • The suit was filed by the Plaintiff against Himalayan Heli Services Pvt. Ltd (hereinafter referred to as "the Defendant") for the purpose seeking permanent injunction restraining the Defendant their employees, servants, agents etc. from using or otherwise copying, selling, offering for sale, counterfeit/unlicensed versions of the Plaintiff's copyright in his artistic work 'HIMLAYAN HELI SERVICES' in any shape, form or manner which amounted to infringement of the Plaintiff's copyright.
  • Plaintiff was a mountaineer who had far-reaching experience of expeditions in the Himalayas and was involved in the business of sking, trekking and rafting.
  • Defendant was a private limited company incorporated in July, 1998 as a 100% subsidiary of the M/s World Expeditions (India) Pvt. Ltd., who was engaged in the business of conducting helicopter operations.
  • It was alleged by Plaintiff that it noticed on the internet and elsewhere that the Defendant was infringing Plaintiff's copyright and had titled it as "HIMLAYAN HELI SERVICES" and was using the artistic work of the Plaintiff consisting of pictorial representations of the said artistic work with identical shades, lay-out, features, get-up etc. on its websites, letter heads, stationery, business cards etc.
  • It is claimed that the Defendant was infringing the artistic work of the Plaintiff by means of posting the insignia in the various exhibitions, galleries, newspaper etc both in Delhi and Trans border.

Plaintiff's Contentions

  • It was alleged that the Plaintiff was the original creator, lawful owner and proprietor of the copyright in the artistic work titled "HIMALAYAN HELI SERVICES' and the same was registered in Plaintiff's favor on January 28, 2008.
  • It was contended that that the Defendant was wrongly and illegally using the Plaintiff's copyright in the artistic work titled "HIMLAYAN HELI SERVICES" on its websites, letter heads, stationery, business cards etc.
  • It was claimed that the Defendant's logo has an identical get up, layout and features as that of the Plaintiff's.
  • It was contended that the Plaintiff was also the first user of the artistic work as per Section 17 of the Copyright Act (hereinafter referred to as 'the Act') and was entitled to all exclusive rights as provided under Section 15 of the Act.
  • It was contended that Defendant themselves had admitted that that the Plaintiff had been using the logo of a triangular mountain with the skiing trail surrounded by clouds, thus the subsequent adoption of the Defendant of the logo with a helicopter in a mountain and the clouds not only infringed the Plaintiff's artistic work but also amounted to passing off.

Defendant's Contentions

  • It claimed to be engaged in the business of conducting helicopter operations.
  • It was contended by the Defendant that around the year 1989-90, the Plaintiff had showed interest in doing business in India in the area of Heli Skiing and thereafter, a working arrangement was entered into between M/s World Expeditions Pvt. Ltd and the Plaintiff to organize tours for Heli Skiing.
  • It was alleged that the Plaintiff wanted to conduct the business under the name and style of Himalayan Heli Skiing, but on the objection by the Defendant on the same, the Plaintiff changed the name of its operation to Himachal Helicopter Skiing with a logo being a triangular mountain with a ski trail surrounded by clouds.
  • Later, the Defendant changed the nomenclature from M/s World Expeditions (India) Pvt. Ltd to 'HIMALAYAN HELI SERVICES' Private limited.
  • It was stated that in the year 1998 during the formation of the Defendant, a logo was designed depicting a helicopter in a triangle with clouds around it, the triangle depicted the mountains. The clouds were claimed to be put on the suggestion of the Plaintiff.
  • It was submitted that the symbol of 'Dorje' was incorporated in the logo of the Defendant by one Mr. Wangchuk, who was a practicing Buddhist. Further, It is stated that M/s Mahavir Printers was engaged to design a suitable logo for the Defendant with a 'Dorje' and out of the various designs given Defendant selected the present logo/insignia. Thus the original artistic work in this logo containing the dorje/vajra is of the Defendant and not the Plaintiff and it was claimed that the logo containing the Dojre was an original artistic work of the Defendant.
  • It was submitted by the Defendant that the dispute between the parties arose in the year 2006 and also, that the Plaintiff was fully aware about the logos being used by the Defendant and the Plaintiff used the logo containing ski trail in a triangular mountain surrounded by clouds.
  • It was contended that the Plaintiff's suit was liable to be dismissed as there was material concealment of facts and the Defendant had been using its logo with a helicopter in a triangular mountain clouds and dorge in 'HIMALAYAN HELI SERVICES'.

Court's Analysis

After hearing the respective parties to the suit, the Court framed various issues and held as under:-

  • "Whether the Plaintiff has any right, title or interest or copyright in the artistic work 'HIMALAYAN HELI SERVICES'? and Whether the Defendant is the owner of the copyright in the artistic work 'HIMALAYAN HELI SERVICES'?"
  • The Court relied on the case of R.G. Anand vs. M/s Delux Films & Ors. and after perusal of the contentions raised by either parties held that neither the Plaintiff nor the Defendant could claim any copyright in the artistic work for which registration had been granted to the Plaintiff vide registration No.A81931/2008 i.e. triangular mountain with the clouds and a helicopter even though the same was being used as a logo for the joint venture. It was observed by the Court that Plaintiff had placed no documents on record to show that prior to 1998 the Plaintiff was using the mark "HIMLAYAN HELI SERVICES" whereas the Defendant had placed on record documents to show that before Plaintiff joined the joint venture i.e. Himalayan Heli Services Private Limited, his organization was called as M/s. Himachal Helicopter Skiing bearing the logo being a triangular mountain with a ski trail surrounded by clouds.
  • With regard to the logo Himalayan Heli Services depicted with a Dojre, the Court observed that neither in the plaint nor in the evidence the Plaintiff claimed that he was the creator or author of the said artistic work and mere grant of copyright in favour of the Plaintiff would not inure a right to the Plaintiff.
  • "Whether the Plaintiff has suppressed material facts and the effect thereof?"
  • The Court stated that in the suit in hand the Plaintiff had claimed for injunction restraining the Defendant from using its copyright in the artistic work but it was required by the Plaintiff to plead that that the Plaintiff had been working with the Defendant from 1989 to 2006 till the time disputes arose between the parties. As a joint venture both the Plaintiff and the Defendant were using logos which falsified the claim of the Plaintiff as an exclusive user. Further, the claim of the Plaintiff that he came to know about Defendant's user before filing of the suit was also falsified by the documents placed on record by the Defendant. The Court had placed on the cases Badami v. Bhali reported in (2012) 11 SCC 574, Meghmala v. G. Narasimha Reddy reported in (2010) 8 SCC 383. The said issue was decided in favour of the Defendant as it was held that the Plaintiff concealed material facts in the plaint.
  • "Whether the Plaintiff has acquiesced in the Defendant's use of the said artistic work?"
  • The Court observed that the claim of the Plaintiff came to know about the infringement in January 2009 was falsified as the certificate of registration, in respect of the logo triangular with a helicopter in between along with the clouds and Himalayan Heli Services with the 'Dojre', exhibited by the Plaintiff was of the year 2008 when the Plaintiff parted from the Defendant's Company. While, the Defendant had placed on record documents relating back to year 1993,1995 and 1996, which showed that the Defendant had been using the said mark since then. Defendant had also placed on record documents of the Himachal Heli Skiing wherein the triangle used by the Plaintiff was with a ski trail and not a helicopter.
  • The reliance was placed by the Court on the case of Power Control Appliances v. Sumeet Machines Pvt. Ltd reported in (1994)2 SCC 448, Khoday Distilleries Ltd. v. Scotch Whisky Assn reported in (2008) 10 SCC 723. The Court held that the Plaintiff was not entitled to the relief of injunction due to the acquiescence by the Plaintiff when he ignored the use of Trademark by the Defendant. It was observed that the Plaintiff used the artistic work along with the Defendant, that is, triangle depicting the mountain with the clouds.
  • "Whether the Plaintiff is entitled to permanent injunction to restrain the Defendant from using the artistic work 'HIMALAYAN HELI SERVICES'?"
  • The Court observed the contention raised by the Defendant that both the logos were designed by the Defendant and Plaintiff had never used the same and it had been using the logo of a mountain with triangle with the ski trail and the clouds. It was held that despite there being registration in favour of the Plaintiff, the Defendant had acquired goodwill in the same. It was decided by the Court that the Plaintiff was not entitled to seek an injunction. The Court relied on Jai Narain Parasrampuria v. Pushpa Devi Saraf reported in (2006) 7 SCC 756, Citadel Fine Pharmaceuticals vs. Ramaniyam Real Estate (P) Ltd reported in 2011 (9) SCC 147.
  • In view of the above explanations rendered by the Court, it was of the view that the Plaintiff was not entitled to relief of injunction.

For further information please contact at S.S Rana & Co. email: or call at (+91- 11 4012 3000). Our website can be accessed at

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions