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2016 (7) TMI 1190 - HC - Indian LawsViolation of copyright - “infringing products” designs - the products i.e. food grade plastic storage containers known as Tupperware registered as trade mark in the name of plaintiff - design infringement under Section 20 of the Designs Act; - copyright infringement under Section 55 of the Copyright Act; - Held that:- unless a work of art is capable of design protection and has been registered as a design, or should have been registered as a design, the copyright in the underlying artistic work subsists independently of design rights. In this case, the work is protected as a design; the averments in the suit are that design registration subsists in respect of the products which the defendants are alleged to have infringed. In the circumstances, the question of asserting a copyright infringement claim, independently, when the design protection subsists, but infringement has not been prima facie established, cannot arise at all. In the present case, the copyright protection (and infringement) claim is premised on a bare assertion that the drawings (from which the moulds are made) are artistic works, because considerable amount of money was spent on the making of such molds. Though the court cannot comment on the veracity of such claim, at least the decision in Modak (2007 (12) TMI 466 - SUPREME COURT) now binds it to examine every copyright claim closely, to see whether there is some minimum creativity. Now, the plaint nowhere discloses that the drawings (i.e. the artistic works here) have any inherent capability of art: it is evident that these drawings are of commonplace every day articles used in households. The idea expression doctrine, itself would prima facie prevent copyright protection because the depiction of daily articles cannot per se be “enclosed” to create a monopoly where the legitimate monopoly (design right) which the plaintiffs could have claimed, has not been prima facie established by them. Whilst in the case of trade dress in the form of label or mark, distinctiveness is easily discernable, in the case of shape based trade dress, the plaintiff has to necessarily show that the get up of the product or article (over which certain exclusivity or distinctiveness is claimed) has an integral association only with it. Unless this requirement is pleaded and established, (and for interim injunction purposes, at least prima facie) every product with a commonplace shape would “ride” on the reputation of an exclusive trademark, based on a distinctive name, label or color combination of the packaging or label, etc. In this case, the distinctiveness of the shape of the product- asserted to be unique or solely associated with the plaintiff has not been so pleaded and established. Decided against the appellant / plaintiff.
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