India: Delhi High Court On Original Work Under Section 13 Of The Copyright Act

Last Updated: 7 June 2018
Article by S.S. Rana & Co. Advocates


Copyright is a legal right which provides protection to the original creations of human mind and intellect. Artistic work is a form of work over which copyright is available. The word "artistic" is commonly thought of pertaining to a painting or a sculpture, however, there are various other forms which are recognized by the Copyright Act, 1957.

Section 2(c) of the copyright act defines "artistic work" as,

  • a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;
  • a work of architecture; and"
  • any other work of artistic craftsmanship;

Therefore, to qualify as an artistic work, the work need not possess high quality of art. A work can be artistic even with de minimus artistic quality. However, the work must be an original expression of thought i.e. the work must have "originality" to qualify as an artistic work under the Copyright Act. The expression in the work should be the result of application of skill and judgement on the part of the artist creating the work, that is, the artist must have applied more than some mere mechanical exercise in order to create the work.

Recently, the Delhi High Court in the case of, Marico Ltd vs. Mrs. Jagit Kaur, has allowed the rectification application of Marico Ltd (hereinafter referred to as the "Appellant") holding that the artistic work for the label of Mrs. Jagit Kaur (hereinafter referred to as the "Respondent") "NIHAL UTTAM" is not an original work under section 13 of The Copyrights Act, 1957. It was held that the Respondent's said label is a substantial reproduction and a colorable imitation of the Appellant's "NIHAR COCONUT OIL".

Brief Facts

  • The Appellant's trademark "NIHAR" has been registered in India since 1994 and has been in use for several years with respect of coconut oil and the label that has been used, has the primary colour scheme of green, yellow and white with the representation of two coconut trees. Over the years there were certain amends but the basic structure and the colour scheme remained the same.
  • In 2008, the Appellant came across the Respondent's copyright registration. It was alleged that the copyright as an "artistic work" was first published in 2002 whereas it was registered in the year 2003.
  • It was further alleged that the Respondent's copyright had several similarities with the Appellant's label.
  • Thus, an application had been preferred by the Appellant to the Copyright Board under Section 50 of The Copyrights Act, 1957, seeking rectification i.e. removal of the Respondent's registration from the Register of Copyrights.
  • The rectification petition was dismissed on April 21, 2008 and the present appeal assails the said order.

The Labels of the two Marks are as follows-




  • Whether the Respondent's copyright is an "original" artistic work?
  • Whether the Appellant is entitled to having the Respondent's copyright removed on the grounds of it being similar to the label?

Copyright Board's Observations

  • It was observed that the allegation of copying is in a very general form and no specifics of the attributes of copying have been explained.
  • It was further observed that the words "NIHAR" & "NIHAL" owe their roots to different languages having distinct meanings. "NIHAR‟ is a word of Sanskrit origin, whereas "NIHAL‟ owes it's origin to Persian.
  • It was stated that arguments in the nature of class of goods and nature of business of the Petitioner and Respondent being similar and so there being degree of confusion and deception have a prominent role in determining a matter relating to the rights of a trade mark. In matter of copyright, lackness of the originality of the work is the touchstone.

Appellant's Contentions

  • The Appellant claimed that the comparative features of the two labels are so similar that "NIHAL UTTAM" label can safely be termed as colorful imitation or substantive reproduction.
  • It was claimed that the color scheme between the two labels is the same
  • It was further claimed that the manner in which the coconut tree is arranged is the same, the arrangement of two broken coconuts is similar.
  • It was contended that due to the long user in the market, the Appellant's label was quite extensively used and hence the Respondent had access to the Appellant's label. Evidence was presented by the Appellant in the form of various documents to support the contention.

Evidence Respondent

The proviso to Section 45 states that before an application of copyright registration in artistic work is allowed, a no objection certificate has to be obtained from the Registrar of Trademark. The same has been submitted by the Respondent.


The following evidence has been submitted in the form of documents

  1. Copies of packaging of TATA NIHAR since 1995
  2. Economic Times dated 27th April, 2002 about the market share of TATA NIHAR.
  3. Deed of assignment dated 10th September, 1997 between Ajit Upasham, and the predecessor of the Appellant assigning the copyright to the Appellant's predecessor.
  4. Second deed of assignment dated 25th August, 2001 for several variations of NIHAR label.

Court's Decision

  • The Court observed that a perusal of the labels clearly shows that the Respondent's artistic work "NIHAL UTTAM" is not an original artistic work but an imitation of the Appellant's label. The Respondent's label is a substantial reproduction and a colorable imitation of the Appellant's "NIHAR COCONUT OIL". The Appellant is thus a person aggrieved and is entitled to maintain the petition under Section 50 of the Copyright Act 1957.
  • The Court in the order stated that the color scheme between the two is same, further the manner in which the coconut tree and the broken coconuts are placed is the same.
  • The documents submitted by the Appellant sufficiently show that the label was available earlier in the market. The Appellant's products were openly advertised and have substantial sale in the market. Clearly the Respondent is in a position to know about its existence and copy the same.
  • It further held, that the Copyright Board was concerned with the artistic features in the label and not the trademark, hence, the rejection of the rectification application on the ground that the words are from different origin is contrary to law.
  • Thus, the appeal is allowed.


The Court, in this case, has reiterated the qualification for a work to be artistic i.e. original thought. This is one of the aspects of copyright in the absence of which the same may not be registered. The case thus provides that lack of originality is the touchstone of rectification petition. The Court held that "any entry made of a work which is not an original work would be an entry wrongly made in the Register". This implies that similarity with an already existing trademark, provides an important basis for rectification of copyright register thereby cancelling the registration of the said artistic work.

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.

S.S. Rana & Co. Advocates
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (you must 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