INFRINGEMENT OF COPYRIGHT

Copyright law confers upon the owner of the work a bundle of rights in respect of reproduction
of the work and the other acts which enables the owner to get financial benefits by exercising
such rights.

If any of these rights relating to the work is carried out by a person other than the owner without
the license of the owner or a competent authority under the act, it constitutes infringement of
copyright in the work

Copy right Infringement is divided into two categories:-

1. Primary infringement - deals with the real act of copying

2. Secondary infringement- infringement deals with other kinds of dealing like selling the

pirated books, importing etc.

To prove copyright infringement , plaintiff must show not only that defendant copied the work
but that the copying was illicit.

There should be substantial difference.

CASES

1. DELHI HIGH COURT SERVEWELL PRODUCTS PVT LTD & ANR.

Vs. DOLPHIN on 9 April, 2010( MANU/DE/1019/2010)
This is an order deciding two applications seeking permanent injunction under section
51 and 55 of the Copyright Act, 1957 read with section 22 of the Designs Act, 2000
restraining infringement of registered design, copyright and passing off by the defendant.
The suit states that the first and the second plaintiffs (hereafter jointly, "Servewell") are
sister concerns, as they are controlled by members of the same family.
It is stated that, as a part of promotional activities, in 2005 Servewell commissioned the
services of one Mr. Bhupendra Chotalia, a commercial artist to design art works for
calendar and greeting cards for the year 2006, to be distributed among stockists and
distributor
 In 1st week of August, 2008 the first plaintiff claims to have invented a new/novel design
of serving tray having a unique shape and configuration, which was duly registered on
11.08.2008 with the Controller of Designs under no. 217625; a copy of the certificate is
filed. The first plaintiff permitted the second plaintiff to manufacture and market serving
trays under the said new/unique design and incorporating all/any of the above mentioned
artistic works.
The suit claims permanent injunction, and consequential relief, against the defendant
(hereafter "Dolphin") for alleged infringement in respect of registered artistic works
displayed in trays marketed by the latter (i.e. Dolphin), which are identical replicas of the
artistic works found in the trays marketed by Servewell.

Issue
The plaintiffs claim to be the copyright and registered owners of unique and distinctive
designs of trays, which was infringed.

Arguments
The plaintiffs complain that the defendant has blatantly copied both their design as well
as some of the artistic works which are embedded on the tray. In support, the plaintiffs
have produced photographs of the two products
the circumstances, the defendants, their proprietors/partners, principal officers, servants,
retailers, stockists , distributors, representatives and agents are hereby restrained from
manufacturing, selling, offering for sale, stocking, advertising, directly or indirectly
dealing in serving trays or other allied and cognate goods which are subject matter
containing depiction
The plaintiffs apprehend that on being served with the summons, the defendant might
remove the stock of the impugned goods bearing the impugned trademark as well as they
may tamper with the books of accounts.

Defence arguments

Servewell argues that the copyright in the art works, which are embodied in the trays,
have been slavishly reproduced by Dolphin, in the trays sold by the latter so called
changes urged by Dolphin, do not obscure the slavish reproduction of the essential
 artistic works, in all the products or goods, and that the written statement does not
disclose any legitimate defence.
"For the purpose of infringement of copyright, an exact reproduction of substantial part
or copy is not necessary. What is essential is to see whether there is a reproduction of
substantial part of the picture. There can be no test to decide what a substantial part of a
picture is.
Castrol Ltd v. Tide Water Oil Co., 1996 PTC 16 (Cal) in support of this submission. It is
submitted that the defendant's argument about existence of prior art, taken in the written
statement, cannot stand scrutiny, since only photographs have been produced, and not
any object in material or three dimension.
It is argued that the three floral designs used by Servewell for its trays are neither
original nor works of art, as they merely copy prior publications. Dolphin also says that
the floral designs are, in any case not entitled to copyright protection, since they do not
satisfy the test of original artistic works, as there is no creative element. Dolphin relies
on the recent ruling of the Supreme Court, inEastern Book Co. v. D.B. Modak, 2008 (1)
SCC 1. It is submitted that copyright registration does not in any manner affect the right
of Dolphin to submit that the works in question are not copyrightable, or entitled to
copyright protection, unlike in the case of trademark.
A perusal of the Copyright Act and the Designs Act and indeed the Preamble and the
Statement of Objects and Reasons of the Designs Act makes it clear that the legislative
intent was to grant a higher protection to pure original artistic works such as paintings,
sculptures etc and lesser period of protection to design activity commercial in nature.
Section 15(2) of the Copyright Act does not exclude from the ambit of Copyright
protection either the original "artistic work" upon which the design is based or the design
which by itself is an artistic work while the original painting would indeed be entitled to
the copyright protection, the commercial/industrial manifestation of such paintings such
as the design derived from and founded upon the original painting for the purpose of
industrial production of furnishings would only be covered by the limitations placed
in Section 15 of the Copyright Act and would get protection if registered as a design
under the Designs Act but would enjoy lesser period of protection in case of a registered
design.
"sweat of the brow" doctrine, to scrutinize whether a work was original or not. The Court
emphasized that the aesthetic content of the work, or its artistic appeal was irrelevant, so
 long as the author or creator was able to show that some effort had been put in to create
it.
The critical distinction between "idea" and "expression" is difficult to draw. As Judge
Hand candidly wrote, "Obviously, no principle can be stated as to when an imitator has
gone beyond copying the 'idea,' and has borrowed its 'expression.'

Held

As a result of the above discussion, it is held that the subsisting interim order has to be vacated.
The injunction in respect of the artistic works, which have been registered by the first plaintiff, is
hereby vacated. Likewise, the injunction in respect of Design is hereby vacated. Resultantly, the
defendant is permitted to open the seals in respect of all the products is dismissed.

CASE 2
Pepsi Co Inc and Ors vs. Hindustan Coca Cola Ltd n(MANU/DE/08996/2003)

INTRODUCTION

The issue has become a serious business these days. Television commercials which are
meant to portray a stylization of the good life are crafted with great care, using all the
skills that the arts and psychology have produced

The vast majority of the viewer of the commercial advertisement on electronic media are
influenced by the visual advertisements as these have a far reaching influence on the
psyche of the people.

Therefore, discrediting the product of a competitor through commercial would amount to

disparagement as has been held by the High Courts and the Supreme Court of India as
well as the Law laid down by Courts in U.K. & U.S.A.

FACTS
 The case of the appellant was contested by the respondents, inter alia, on the ground that
the Cola War is a matter of trade rivalry and a market place matter. Moreover,
respondents have neither infringed the trade mark nor copy right of the appellant nor in
any way disparaged the products/goods of the appellants. The respondents were puffing
to promote their goods which is a healthy competition. Moreover, advertisements are
nothing more than a probity and are aimed at pocking funs at the advertisements of the
others which is permissible in Law

On these and other allegations the learned single Judge determined the questions of
disparagement against the appellant by saying that commercial was healthy competition.
It was mere pocking the product of the appellant which is permissible. Respondents had
not denigrated the product of the appellant. To say it is "Bacchon Wala Drink" does not
amount to disparaging. Further held that the phrase "Yeh Dil Maange More" is not copy
rightable nor respondent infringed the "Global Device" of the appellant. There is no
infringement of the appellant's roller coaster commercia.

ISSUES

(i) whether prima facie the respondents have disparaged the products of the appellants;

(ii) whether the globe devise and the phrase "Yeh Dil Maange More" is copy rightable
and if so whether this copy right has been infringed by the respondent;

(iii) whether the essence of the roller coaster has been copied by the respondents and if
so the affect of the same

ARGUMENTS

The court in the case of Reckitt & Colman of India v. Kiwi TTK LTD., 1996 PTC (16)
393 held that the comparative advertising is permissible, however, a promoter of product
is not entitled to defame the goods of its competitor. It is opined that "the Courts will
injunct the defendant from publishing or circulating an article if the dominant purpose is
to injure the reputation of the plaintiff.
 ARGUMENTS FOR 2ND ISSUE
The next question for consideration is about infringement of copy right and literary work
of the appellant namely the phrase "Yen Dil Maange More"
Relying on these decisions Mr. Kapil Sibal contended that even a portion of a song which
is a part of the copyright work is also protected as a literary work.. Mr. Kapil Sibal
contended that the slogan "Yeh Dil Maange More" is a literary work hence copy right
able
The advertising catch phrases are entitled to copyright protection. It is the original work
of the appellant and, therefore, protect the advertising theme of the same. To popularise
this copyright work i.e. "Yeh Dil Maange More" the appellant has spent enormous
amount on this advertising theme.
"Yeh Dil Maange More" is a successful theme in India of the appellant. The judgments
relied by respondent namely Sinanida v. La Maison Kosmeo, 139 The Law Times 365;
and Kirk v. J & R Fleming Limited, 1929 Ch. D. 44 are distinguishable on facts. In the
case of Sinanida (Supra) plaintiff had copied already existing slogan, hence it was held
that it was not original literary work of the plaintiff. Court further held that when
"slogan" consists of an original composition in four lines of verse, in which there
may be copyright, and the same may be said of an original composition in prose.
GLOBE DEVICE is a registered trade mark of the appellant. By showing GLOBE
DEVICE of the colour scheme on the bottle on which word "PAPPI" is written and then
saying "Yeh Dil Maange No More". Mr. Kapil Sibal said such use of a registered trade
mark in comparative advertising constitutes infringement of registered trade mark in
terms of Section 29(1) of the Trade and Merchandise Marks Act, 1958
s infringement as held in Bismag Ltd. v. Amblins (Chemists) Ltd., [1940] 2 ALL E.R.
608.
In India comparative advertising is permissible and the infringement occurs only when
the registered mark is used by the rival for the purpose of indicating the origin of
the goods as being his.

Infringement of registered trade marks -

(1) A registered trade mark is infringed by a person who, not being a registered proprietor or a
person using by way of permitted use, uses in the course of trade, a mark which is identical
with, or deceptively similar to, the trade mark in relation to goods or services in respect of
which the trade mark is registered and in such manner as to render the use of the mark
likely to be taken as being used as a trade mark."

Kaviraj Pandit Durga Dutt Sharma v. Navratan Pharmaceutical Laboratories, : (ii) Ruston
and Hornby Ltd. v. Zamindara Engineering Co. ; (iii) Cadila Health Care Ltd. v. Cadila
Pharmaceuticals Ltd., decided on 8th November, 2000. If a trader compares his goods with the
goods of a rival without in any way advertising that the trade mark is used in relation to his
goods, there is prima facie no infringement.

HELD
The copying of the elements of the appellant's cinematographic film by the respondent in their
commercial constitutes infringement. Thus, the fundamental fact which has to be determined
where a charge of violation of the copyright is made by the plaintiff against the defendant is to
determine whether or not the defendant not only adopted the idea of the copyrighted work but
has also adopted the manner, arrangement, situation to situation, scene to scene with minor
changes or super-additions or embellishment here and there. Indeed, if on a perusal of the
copyrighted work the defendant's work appear to be a transport rephrasing or a copy of a
substantial and material part of the original, the charge of palagiarism must stand proved..."

The above analysis, we partly accept the appeal and restrain the respondent only in respect of
showing the commercials annexed with the plaint as prima facie view has been expressed,
therefore, any observation made hereinabove will have no bearing on the merits of the case.

CASE 3

Microoft Corporation v. Nimesh 2012(51) PTC 205 (Del)

ISSUE

The plaintiffs have filed the present suit for permanent injunction restraining the
infringement of copyrights, delivery up, rendition of accounts, damages, etc. against the
defendant

FACTS

The plaintiffs are engaged in the business of developing, manufacturing, licensing and
support of a range of software products for various computing devices.
The plaintiff's computer programs are "works" that were first published in the USA and
are also registered in the USA. The said programs have been created for the plaintiff No.1
by its employees and under the US Copyright Law, US Code Title 17, Section 201(b), the
copyright in a work created by an employee belongs to the employer under the doctrine
of Work made for Hire
Plaintiffs that both the computer program, as well as the supplementary User Instructions
and Manuals,are original literary works as contemplated under Section 2 (o) and Section
13 (1) (a) of the Copyright Act, 1957 and plaintiff No.1is the owner of the said copyright.
In the month of July 2010, the plaintiffs came to know that the defendant was infringing
plaintiffs copyrights and other intellectual property rights by loading the Hard Disk of
the plaintiffs software programs on to the branded computers which are sold by them to
their customers, without taking any authorization from the plaintiffs to do so
The plaintiffs sent an independent investigator namely, Mr. Shubham Jain, to the outlet of
the defendant to ascertain the same.
As per the technical expert, plaintiffs programmes contained on the hard disk of the
laptop computer system were unlicensed and/or pirated versions of the plaintiffs
software. The said unlicensed software programs were not accompanied by any original
Certificate of Authenticity (COA) label, Holographic Software Installation CD/DVD s,
User Instruction Manual/Booklet and Genuine copy of End User License Agreement
(EULA).
On comparing the software being sold by the defendant, with the software originating
from the plaintiffs, it was found that the software supplied by the defendant were pirated
versions of the original computer programs of the plaintiffs.
 The software supplied by the defendant were not accompanied by the
accompanying Certificate of Authenticity (COA) label.
The defendant did not provide any Holographic Software Installation CD/DVDs
(whether recovery or backup) along with the software program.
The software supplied by the defendant did not have any End User License
Agreement (EULA).
The software supplied by the defendant did not have any User Instructions
Manual/Booklet.
The software supplied by the defendant were free of cost and the cost of the
computer was not enough to cover the price of the genuine software.

Held

It was held that , the plaintiffs have proved the facts stated in the plaint and have also
exhibited the relevant documents in support of their case. The evidence filed by the plaintiffs
has gone unrebutted as no cross-examination of the plaintiffs witness was carried out.
Therefore, the statements made by the plaintiffs are accepted as correct deposition.

Hence, the right of plaintiff were protected under section 40 of the Act and both India and US
are member of Berne Convention and Universal Copyright Convention

SUBMITTED BY

AARTI SAHU