India: Copyright Board Inspects ‘Originality’

Last Updated: 25 March 2008
Article by Manisha Singh Nair

Copyright Act, 1957 is the umbrella legislation relating to copyright. The term 'copyright' under the statute means the exclusive right to do or authorize the reproduction, issuing copies, communication to the public, translation and adaption of a 'work' or a substantial part of it in which copyright subsists. The Act is administered by the Department of Higher Education in the Ministry of Human Resources Development. The Act set up a Copyright Office under the control of Registrar of Copyrights, for the registration of Copyrights.

A Copyright Board is established under the Act. The Board, a quasi-judicial body, is entrusted with the task of adjudication of disputes pertaining to copyright registration, assignment of copyright, grant of licenses in respect of works withheld from public, unpublished Indian works, production and publication of translations and works for certain specified purposes. The Copyright Board also hears cases in other miscellaneous matters instituted before it under the copyright Act, 1957. Lately the Copyright Board heard the case Leo Food versus Nutrine Confectionery Co. (P) Ltd 2008 (36) PTC 358 (CB).

The case pertains to petitioner's application for rectification of the register under Section 50 of the Copyright Act, 1957 with respect to the respondent's artistic work. The petitioner challenged the originality of the respondent's artistic work and also alleged that the certificate under section 45(1) from the Registrar of Trade Marks has been obtained even though the application of Parry Confectionary Ltd. for registration of the label containing the same artistic work was pending before the Trade Marks Registry.

Proviso to the section 45(1) of the Copyright Act provides that in respect of an application for copyright registration of an artistic work which is used or is capable of being used in relation to any goods, the application shall be accompanied by a certificate from the Registrar of Trade Marks to the effect that no trademark is identical with or deceptively similar to such artistic work has been registered or applied for registration.

The Board heard the arguments of both parties with respect to determination of the originality of the impugned work and alleged violation under section 45(1) of the Copyright Act. On the originality front, the Board examined the impugned work vis-à-vis the Parry Confectionary's label. The petitioner, respondent and the third party, Parry Confectionary, all three are in the business of confectionary products. The petitioner has his mark as LEGO MEGA LACTO, the respondent has his as MAHA LACTO and Parry's mark is LACTO KING. The comparative examination of the labels by the Board concluded that the total get-up and style of the letters of the impugned label is distinct enough to steer clear of the alleged similarities questioning its originality vis-à-vis Parry's label. The Board noting the lack of any averment alleging infringement of petitioner's work by the respondent's work in the pleading and submissions made, further added on the lack of originality that both the works are of different origin unless some cogent evidence is adduced to argue that a conscious effort was made to derive one from the other.

Finally dismissing the petition for lack of any merit, the Board clarified that alleged statutory violation of the section 45(1) of the Copyright Act involves the allegation that the Registrar of Trade Marks has wrongly issued the certificate, which is appealable before Intellectual Property Appellate Board. Therefore the Board lacks jurisdiction in this regard.

The Board while discussing the issue raised a very pertinent point in the context of originality under copyright law vis-à-vis deceptive similarity under trademark law as most of the time it happens that along with a petition before the Board; there is a passing off / infringement suit under the Trade Marks Act between the parties. The Board said that –

Publications claimed under the Copyright Act and the user claimed under the Trade Marks Act besides being not literally synonymous are not in matter of their legal effect result into the same effect. Still the dates of publication or user claimed on both the sides may give some clue to ascertain the prior existence of the respective artistic works if the same has some meaning for the purposes of the Copyright law. However, for drawing inferences as to the originality under the Copyright law and the deceptive similarity under the Trade Marks law, the year of publication or user, as the case may be, have different relevance and accordingly emphasis for the purpose. A work later in time deceptively similar to an earlier work may not meet the standards of recognition under the Trade Marks law even though such later work owes its origin from an independent source. However the same work though being later in time may be a good work having protection of the Copyright law if it meets the standards of the originality under the Copyright law.

The crux of the case is that any incidental similarity on some aspect between the two points cannot become a basis for questioning the originality of the work forming the mark/label.

© Lex Orbis 2008

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.

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