TMI Blog1983 (9) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... e where the plaintiffs or if there are more than one, any one of them is residing, carrying on business or personally works for gain. In this case it is stated by the plaintiffs that plaintiff No. 2 has registered office at Dr. Annie Besant Road, Bombay and has local office at Mathura Road, New Delhi. It is apparent from what has been stated by the defendant in the W/S reproduced above) that the defendant does not deny the existence of local office of plaintiff No. 2 at Delhi. Having regard to the fact that the local office of plaintiff No. 2 is situated at Delhi, the plaintiff is obviously carrying on business at Delhi. That being so, this court has jurisdiction with respect to the present proceedings which relate to the infringement of copyright. (3) During arguments the complaint of the counsel for the defendant was that the plaintiff had acted with cleverness by way. of combining his cause of action on the basis of copyright so that they could bring suit in respect of both the causes of action at Delhi, that cleverness should not be encouraged and that, Therefore it should be held that this court has no territorial jurisdiction to entertain the suit. But in my view there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted triangle and the diamond device or any other deceptively similar trade mark amounting to infringement of the plaintiffs' registered trade marks set out in paragraph 4 of the plaint or form substantially reproducing the plaintiffs' Glucons-D and/or Glucons amounting to infringement of registered copyrights of the plaintiffs as set out in paragraph 5 of the plaint or from doing any other activity likely to result in passing off of the defendants goods and business as the goods and business of the plaintiffs. (7) The plaintiffs have placed on record photostat copies of the certificate of registration of the trade mark as well as copyright. The plaintiffs have further placed on record a a carton (at page 55 of the documents file) in which the defendant is selling his product Glucose-D. The plaintiffs have also filed the cartons of their produce Glucon-D under which the words written are Glucose-D. On a comparison of the two, it is clear that they are similar and the resemblance is to the extent that any product in the carton of the defendant can be taken to be that of the plaintiff. The background of each of them is green. There are criss-cross square at the same place o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of rupees of their product from the years 1972 to 1982 yet the said statement was no supported by an affidavit and that, Therefore, it cannot be said that their products were so well reputed as to command wide and exclusive sale. I do not, however, agree with the learned counsel. Prima facie all the conditions mentioned in the afore said authority stand established, [t is true that affidavit has not been attached with the statement of sales and the statement of expenditure on advertisement but it was stated at the bar that if the court permitted an affidavit could be filed. Learned counsel for the defendant did point out the defect of absence of affidavit but at the same time he could not dispute correctness of the said statements at the bar. Therefore, prima facie they give correct indication. The other condition obviously stands satisfied. The products of the plaintiff are put in cartons with distinctive features, as already mentioned. The user has been substantial for number of years while the user of the defendant, even according to the case of the defendant, is later in time because according to the plaintiff, their user started in 1979. (10) Learned counsel for the defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid defense raises a question as to what rights are conferred on account of registration of the copy rights and what exactly the nature of copy rights is. The relevant provisions regarding the registration of copy rights are sections 44 and 45 of the Copy Right Act. Section 44 says that there shall be kept at the Copyright Office register in the prescribed form to be called register of copyright. Section 45 reads (......) It is apparent from a plain reading of section 45 that it is discretionary with any author of any work to apply for the registration of copyrights and that registration as such does not confer any rights. There is no other provision at all in the Copyright Act which confers rights on account of registration of a copy right. Therefore, copyrights exist whether the registration is done or not and the registration is merely a piece of evidence as to when a certain author started claiming copyrights in some artistic or some other work. (15) When the registration does not confer any rights it is to be seen as to how copyrights in favor of a person came into existence. S. 13 of the Copyright Act gives a clue as to how a copy right is acquired. It says that copyright ..... X X X X Extracts X X X X X X X X Extracts X X X X
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