The Copyright Act, 1957, provides for a rectification of the
register, under S. 50. The section reads:
Rectification Of Register By Copyright Board:
The Copyright Board, on application of the Registrar of Copyrights
or of any person aggrieved, shall order the rectification of the
Register of Copyrights by ---
the making of any entry wrongly omitted to be made in the
register , or
the expunging of any entry wrongly made in, or remaining on,
the register , or
the correction of any error or defect in the register.
Filling an application under the section, an associated dispute
came up calling for the Copyright Board' attention vide
Jupiter Match Work v. Kaveri Match Works & Anr.
2008(37)PTC 613(CB). Jupiter claimed to be proprietor the label
HORSE and a device of a horse standing on two legs. Jupiter was
also involved in the business of matches vide the mark 'RED
HORSE', also with a horse standing on two legs. The mark being
registered under the Trade and Merchandise Marks Act, 1958 was
registered continually since 1980 and claimed to have been put to
use in 1957.
Jupiter alleged that Kaveri had suppressed material facts and
obtained wrongly and erroneously the certificate for use as under
S. 45 (1) of the Copyright Act, 1957. Jupiter also averred that the
claimed author of the work could not be the author since it was
quite apparent that the work of Kaveri was a virtual copy of the
label of Jupiter. In pursuance to the letter of the Registrar of
Copyright, seven copies of the infringing marks to be expunged from
the Register were annexed.
The Office of the Registrar in this pursuance asked Kaveri to
file a written statement with a copy to Jupiter, but the same was
not complied by Kaveri. During the hearing, adjournment was
requested on the ground that the notice had been received late.
Consequently the copyright board was made aware of the non-filling
of the written statement. A pre-existent assignment deed was also
averred of between Kaveri and another and they agreed to supply a
copy of the same however the same was not done, neither by Kaveri
nor the assignee. The Board taking a serious view of the matter
agreed to the submission of the arguments in written by both the
parties. Kaveri failing to submit written submissions as well led
the Board to proceed accordingly on the basis of material available
The Board noted that Copyright Registration had been obtained on
the Horse standing on two feet and that the trademark registration
had been renewed from time to time by Jupiter. On the other hand,
Kaveri had obtained trademark registration from time to time.
Comparing the portrayal and the label of the two marks, it was
found that the horse on the label of Kaveri was a verbatim copy of
that of Jupiter, except that the same was placed in the opposite
direction to that of Jupiter's. The Board opined such a change
to be significantly small, but opined that a comparison of such
traits would have been enough to conclude that the impugned mark
causes deception and hence be removed from the Register.
Taking into consideration that the Copyrightability of the mark
was being brought into question, the Board opined that the holder
of registration had certain duties. The first amongst these was
stated to be the duty to defend his registration, at which they
opined that Kaveri had failed to do. They took note of the fact
that "artistic labels" were a subject of copyright and
were being used to identify trade identity or source of goods being
manufactured. Referring and relating to Ciba Ltd. v. M.
Ramalingam [AIR 1958 Bom 56] and looking at the ratio therein
the Board concluded that the case of Ciba being on Trade Mark Law,
where an elaborate mechanism of adversial contest exists before the
grant of registration, while the case at hand dealt with Copyright
law, wherein the same is absent. The Board held that in such an
event, the Registrar has to rely to a great extent on what was
stated by the applicant and that it was incumbent upon the holder
of the Registration to defend his mark. In the view of the holder
of registration was said to have failed to have defend his
registration and impugned entry was stated not liable to continue
on the register and ordered the Registrar to expunge the same.
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