Judgment:
A S BOPANNA, J.
1. The plaintiff in O.S.No. 7160/201 1 has filed the suit against the defendants therein seeking for perpetual injunction against the imitation of the plaintiffs artistic works. The plaintiff has also sought for mandatory injunction, interim damages and for rendering accounts of profits earned by such imitation. The plaintiff had also filed an application under Order XXXIX Rules 1 and 2 of CPC seeking temporary injunction pending disposal of the suit in IA No.1. The defendants have appeared and disputed the claim of the plaintiff. The Court below after considering the rival contentions on the interlocutory application, has by its order dated 15.12.2011 allowed the application and restrained the defendants. The defendants are therefore before this Court, in this appeal.
2. The parties would be referred as per the rank assigned to them before the Court below for the purpose of convenience and clarity.
3. Heard Sri Aravind Kamath, learned counsel for the defendants and Ms. Jayna Kothari. learned counsel for the plaintiff and perused the appeal paper.
4. The case of the plaintiff is that they are in the business of selling exclusive designer sarees, blouses. salwar sets and dress material's. Their boutiques and the on-line sale is earned on in the name of 'Sakhi by Chandras'. The mother-daughter duo, Mrs.Chandra Rajendran and Ms Necta Rajendran claim to be in the business of designing sarees for the last 15 years. However, the boutique in Indiranagar was opened in August 2005 in the name of the plaintiff The intricate embroidery designs, cutwork designs, the colour combinations arid the art work done on the designer sarees and the other materials are designed and developed by an in house team led by Mrs.Chandra Rajendran. the Chief designer and Ms.Neeta Rajendran for and on behalf of the plaintiff firm. Therefore, it is claimed to be the artistic work developed by the plaintiff. It is further contended by the plaintiff that they are the author and owner of the copyright in the artistic work done by the designers Mrs.Chandra Rajendran and Ms Neeta Rajendran or by the designers employed by the firm. The manner in which such artistic work is associated with the plaintiff is referred by contending about the write up about such designer wear in several magazines and newspapers. The details of the display by models and the advertisements made in the magazines and on-line in the web-site of the plaintiff arid the amount spent in that regard is referred. The magazines from the year 2006 onwards are produced to indicate that the artistic work of the plaintiff existed earlier than what is claimed by the
5. The grievance of the plaintiff is that the second defendant in the name and style of the first defendant are selling sarees which had identical reproductions of the artistic work created by the plaintiff. The defendants are selling the same not only in their shops, but also in the stalls in several exhibition-earn-sale. The designs of the sarees with code numbers are referred to contend that the very same design is reproduced on material of inferior quality and have been selling it for lesser price. The designs are identical which cannot, be a coincidence, but is an intentional imitation except that in certain ease, a slight, change in colour is made. The second defendant in fact had visited the boutique of the plaintiff and purchased some sarees and has thereafter imitated the same.
6. The defendants have denied the contention of the plaintiff. The thrust of the defendants' case is that the plaintiff has to establish that the artistic work which is claimed by them is original and created by them. Mere reference to have used such artistic: work earlier to that of the defendants does not grant them any protection. Since the plaintiff contends that the artistic work was created by Mrs.Chandra Rajendran and Ms.Neeta Rajendran, the suit if any could have been tiled only by them by claiming to be owners of the artistic work since protection cannot be sought by any person other than the owner. In the absence of assignment in accordance with law the plaintiff which is a partnership firm cannot, maintain the suit is their contention. The case of the plaintiff would only indicate that they have marketed the products but as to whether they have created the design has not been pleaded with necessary details or with certainty.
7. With regard to the business of the defendants, it is contended that it was set up in the year 2008 in the first defendant's name with the second defendant as the properties who has been in the Fashion market for several years. It is contended that, the defendants engage various designers to create designs, colour combinations, artistic works and the same are applied to embroideries, sarees and materials. The artistic works created, developed and applied to various materials by the defendants are claimed to be original works which involve sufficient skill, ingenuity and labour. The defendants have steady customers and the plaintiff being unable to digest the growing popularity of the defendants have come up with the suit. The defendants further contend that the list of designs furnished by the plaintiff are not original as they are available in the open market and are generally found in all leading shops selling sarees and they are not unique. If it was the original artistic work of the plaintiff and if it was to be protected, it would have been open for the plaintiff to have the same registered. The defendants further contend that the plaintiff at this stage have not made out. prima facie case and the Balance of convenience against injunction in any event is against the plaintiff.
8. Having noticed the rival contentions, the matter requires consideration keeping in view the limited scope available to this Court in a matter relating to interlocutory injunction wherein the principles for consideration are well settled. In that direction, what would arise for determination is as to whether the Court below has committed any error in construing the legal provisions and in that light, whether the materials available on record has been appreciated in Its correct perspective in the background of the case pleaded by the respective parties.
9. The contention on behalf of the defendants is that the Court below has committed an error in law with regard to the concept of originality and ownership of the so called artistic work and the conclusion based on assignment said to have been made in favour of the plaintiff firm is contrary to law as well as the records. In order to appreciate the said contentions, it is necessary to notice Section 2 (c) which defines "artistic work". This will indicate that the designs on the saree if created by an artist is artistic work. The "author" relating to artistic work is defined in Section 2(d) as the artist. The work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors is defined in Section 2 (z) as "work of joint authorship". In so far as subsistence of copyright. Section 13(1) (a) provides that copyright shall subsist in original artistic work. The author of a work is to be the first owner of the copyright vide Section 17, while Sub-section (e) to Section 17 provides that in case of work made in the course of the author's employment under a contract of service or apprenticeship, to which clause (a) or (b) does not apply, (he employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright. In other cases Section 18 provides for assignment of copyright by the owner of the copyright to any person who shall thereafter claim to be the owner. The mode of assignment is contemplated in Section 19 which provides that the assignment would be valid only if it is in writing and it should identify such work and the period, while sub-section (5) to Section 19 provides that if the period is not stated, it shall deemed to be five years from the date of assignment. Though Section 44 provides for entries to be made in the Register of copyrights and Section 48 provides for such entries to be prime facie evidence, even in the absence of registration, the copyright in a work is deemed to be infringed in the circumstances contemplated in Section 51 of the Act.
10. The scheme of the Act noticed above would therefore provide that the 'artist' of an artistic work is its 'author' and shall therefore be the owner1 of such artistic work. Such owner of the artistic work may however assign such ownership to any other person in accordance with law. The owner or the assignee would as such person who is allegedly infringing any artistic work, only the be entitled to protect the artistic work from being infringed by any other person even if it is not entered in the register subject to the same being shown to be The original work. In that regard, if the intervention of the Court is required to injunct such owner or the assignee would be entitled to maintain the suit. It is in that context the defendant has raised a serious objection to the instant suit, since according to the defendant, the plaintiff firm is not the owner of the artistic work, let alone the same being original or not.
11. In the background of the above said contention, it is strenuously contended on behalf of the defendants that the Court below has committed a serious error in arriving at the conclusion that Mrs. Chandra Rajendran and Ms. Neetha Rajendran, who are the authors have assigned the intellectual property right in favour of the plaintiff firm and that they are receiving Rs.50,000/- per month as remuneration from the firm for the skill and artistic work. It is contended that the conclusion about they being the employees and plaintiff firm being the employer is also erroneous. The learned counsel for the defendants has raised serious objection to the manner in which the alleged Assignment letters were received and relied upon by the Court below by defeating the valuable right of the defendants to oppose the receipt, or reliance on the document which is not duly stamped. According to the defendants, it is also a fabricated document which could not have been relied on.
12. Learned counsel for the plaintiff on the other hand, relating to that aspect relied on the decision of the Allahabad High Court in the case of Laxmi Butt Roop Chand vs. Nankan and ors (AIR 1964 All 27) to contend that the suit by a firm is maintainable. The said case arose tinder similar provisions, but under Patents and Designs Act. In the said case, the case of the plaintiff firm was that it had obtained licence from the original patentee and that was established as a valid licence in evidence and such suit by the firm was held maintainable. The said decision would not be of assistance since in the instant case, the nature of ownership of the artistic work claimed by the plaintiff firm and the Assignment relied upon, as also the pleading and consideration by the Court below is not in pleading and a similar manner. The learned counsel for the plaintiff has further relied on the decision of the Hon'ble Supreme Court in the case of V. Subramanian vs. Rajesh Raghavendra Rao (AIR 2009 SC 1858) wherein it is held that the partners of a firm are co-owners of the property of the firm unlike the shareholders in a company. But, the issue herein is whether the property of which a partner is the owner would automatically he considered as the property of the firm or the assignment made thereof is valid and whether the Court below has adverted to this aspect, keeping in view the pleading and the requirement, of law.
13. When a plaintiff comes to Court claiming relief against Infringement of copyright, the plaintiff has to put forth details relating to the originality, authorship and ownership of the copyright. Therefore, the pleading put forth and the documents relied on would assume importance more particularly at this prima facie stage.
It is based on such pleading and the materials on record the Court would have to take a decision as to the ownership of the artistic work and the grievance regarding infringement made by such owner as any other person cannot make out a grievance.
14. In the instant case, the relevant portion of the pleading made in the plaint relating to the creation of the artistic work (design) and the ownership thereof is as follows:
"4. The plaintiff firm is inter alia involved in designing Sarees, Salwars, Dress Materials and Kurtis, combining Kanchivaram, Tussar. Chiffon. Georgette. Crepe. Organza. Cotton and other fabrics with traditional techniques such as Cut Work, Block Print, Kalamkari, Badla, Mirror Work. Charnki (Sequins), Embroidery and other crafts in a melange of colours that are all designed by its working partners Ms. Neeta Rajendran and Mrs. Chandra Rajendran. Most of, the customs that are sold in the Plaintiffs boutiques are all designed by the said partners and sold under the label of "Sakhi- by Chandras",
"6. The Plaintiffs business depends on the continuous introduction of new designs, under the creative leadership of Mrs. Chandra Rajendran and Ms. Neeta Rajendran and to create new sarees of a high quality, which are distinctive to Sakhi, exclusive to it and also reflects and changing current trends in fashion."
"7. In the sarees designed by the Plaintiffs firm, the intricate embroidery designs, cut work designs, the colour combinations and all art work that is done on the designer sarees and other products of the Plaintiff are exclusively designed and developed by at in house team led by Mrs. Chandra Rajendran the chief designer and Ms. Neeta Rajendran, for and on behalf of the Plaintiff firm. The patterns printed or embroidered on the fabric and sarees are artistic works in their own right and developed by the Plaintiff. These artworks and the design patterns are given to the weavers and craftsmen (or embroidery and weaving under the close supervision and guidance of the designers, thus creating unique artistic creations, and such sarees are not found anywhere in the market in India. The products sold by the Plaintiff firm have been made after considerable skill, labour judgment and creative efforts have been put in, resulting in original artistic works In which copyright subsists. The Plaintiff is the author and owner of the copyright in the artistic work done by the designers Mrs. Chandra Rajendran and Ms. Neeta Rajendran or by the designers employed by the firm. The designer sarees created by the Plaintiff belong to the couture line and not more than twenty or possible thirty copies are made of any single designer saree.
"9. The drawing which are made in the course of developing the garments, and the patterns for printing and embroidering on the sarees and fabrics are artistic works under Section 2 (e)(i) of the Copyright Act 1957 and the garments and sarees themselves are works of artistic craftsmanship under Section 2 (e) (iii) of the Act. The Plaintiff Is the sole and exclusive owner of the copyright in the same under Section 13 fat of the Copyright Act 1957 as copyright subsist in this works.” (emphasis supplied).
15. A perusal of the said pleading would indicate that the plaintiff firm claims to be the author and owner of the artistic work. The plaintiff firm first contends that most of the clothes sold are all designed by the partner’s viz., Ms.Neeta Rajendran and Mrs.Chandra Rajendran. Secondly, it is stated that the new designs are introduced under the creative leadership of Mrs. Chandra Rajendran and Ms. Neeta Rajendran. Thirdly, it is stated that the products of the plaintiff are exclusively designed and developed by in house team led by Mrs.Chandra Rajendran, the Chief designer and Ms.Neeta Rajendran for and on behalf of the plaintiff firm. Ultimately it is stated that the plaintiff is the author and owner of the copyright in the artistic work done by the designers Mrs.Chandra Rajendran and Ms.Neeta Rajendran or by the designers employed by the firm.
16. It is based on such pleading the Court below should have considered whether the plaintiff firm had become the owner of the copyright enabling them to seek protection. However, the manner of consideration and the reasons assigned by the Court below in para 7 and 8 of the impugned order would indicate that it has arrived at the conclusion that the authors have assigned the intellectual property and that they are receiving Rs.50,000/; as remuneration for the skill and artistic work. The Court below has also arrived at the conclusion that, the original authors have become the employees and the plaint ill firm is the employer. The observation insofar as the authors suing the defendants in the capacity of partners is true. But, the nature of ownership of the artistic work is relevant for consideration.
17. The pleading does not. indicate that the authors of the artistic work have claimed to be the employees of the plaintiff firm under a con tract of service or apprenticeship so as to make the plaintiff Arm the first owner of the copyright as contemplated in Section 17(c) of the Act. The conclusion of the Court, below that the authors are receiving Rs.50,000/- per month as remuneration for the skill and artistic work, they are serving to the plaintiff firm is also not the contention in the plaint which is noticed above. On the other hand the said amount is paid to the said Mrs.Chandra Rajendran and Ms.Neeta Rajendran for discharging their duties as working partners for the conduct of business of the plaintiff firm as depicted in the partnership deed. It in fact that was the consideration for artistic work, that should have found a place in the Assignment letter relied on by the plaintiff firm. The fact that the plaintiff firm has sought to rely on the Assignment letter to demonstrate that Mrs.Chandra Rajendran and Ms.Ncetha Rajendran being the authors have assigned it in favour of the plaintiff firm would indicate that even the plaintiff firm itself does not contend with regard to the relationship of employer and employee between them. They are therefore in fact relying on the Assignment in terms of Section 18 of the Act. The learned counsel for the plaintiff no doubt attempted to contend that firstly the plaintiff firm is claiming ownership over the artistic work of its partners who are a part of the firm and the Assignment letter is only by way of caution.
18. However, the Court below has not proceeded on that basis. Even to consider the same, the averments that plaintiff firm is the author and owner of the copyright in the artistic work done by the designers Mrs.Chandra Rajendran and Ms.Neeta Rajendran or by the designers employed by the firm needed to be considered in its correct perspective if it was put forth in that fashion and the legal position in that regard was demonstrated by the plaintiff. Further, even though the Assignment letter relied on is dated 30.07.2005 i.e., subsequent to the partnership deed dated 01.07.2005, the tenor of the contents in the Assignment letter indicates that they claim to be the sole owner. That apart the Assignment letters said to have been executed by Mrs.Chandra Rajendran and Ms.Neeta Rajendran are both dated 30.07.2005, but there is no reference to such Assignment in the plaint nor has it been enclosed as a suit document as required under Order VII Rule 14 of CPC though it has been referred as the main document by the Court below tor arriving at its conclusion. Though the production of document subsequently is contemplated under Order XIII Rule 1 CPC. admittedly no such application is filed. The document was filed along with a memo at the time of arguments and the Court below has relied on the same, naturally denying the opportunity to the defendants to have their say with regard to the alleged Assignment letters.
19. Therefore, when the basic question with regard to the ownership of the artistic work has not been properly dealt with by the Court below and had misdirected itself on misconception, the finding on the other aspects does not arise for consideration at this stage and the arguments as well as the decisions cited in that regard need not be adverted to in detail. In my view, the application requires reconsideration by the Court below after providing opportunity to the parties to bring on record the relevant pleading and document as also objection to the same in accordance with law and that exercise is to be undertaken before the Court of first instance as this Court is not expected to consider the matter in the absence of finding on those aspects by the Court below. Neither is it open for this Court to examine beyond the scope of an Appeal under Order XLIII Rule I CPC. While reconsidering, if the plaintiff does not choose to rely on the Assignment letters, the Court below will then consider the rival contention on the question as to whether the artistic work of the partner would ensure to the partnership firm of which the author is a partner even in the absence of Assignment letter based on the legal position that may be brought before it. On the other hand, if the Assignment letter is brought on record in aceoi dance with law, the objection of the defendants with regard to the validity of the same shall also be considered and a decision shall be taken thereafter.
20. In the result, the following;
ORDER
(i) The appeal is allowed in Dart.
(ii) The order dated 15.12.2001, impugned herein is set aside and the I.A. is remitted to the Court below for reconsideration in accordance with law.