Mr. Justice S. Ravindra Bhat, J.:-
1. This order will dispose off IA No. 7326 of 2007, by which the plaintiff seeks an ad-interim order to restrain the defendants from passing off and infringing the plaintiff's copyright, by using the identification numbers in respect of homeopathic medicines that are claimed to be deceptively similar to the plaintiffs' marks.
2. The facts relevant for the present purposes are as follows. The first Plaintiff is a company incorporated under the laws of Federal Republic of Germany, having its office at Berliner Ring 32, D-64625, Bensheim, Germany. It is manufactures and markets homoeopathic medicines for the past sixty years. The plaintiff's medicines are sold in forty countries across the globe; they have been sold in India since 1980. The second Plaintiff is a company registered under the Companies Act, 1956 and is engaged in the distribution and marketing of the first Plaintiff's homeopathic formulations in India.
3. The Plaintiffs claim to have been manufacturing Homoeopathic Specialties known as R-Series in Germany for the past 60 years and that these have been recognized for their high efficacy and unique composition. They also allege that while preparing the Homeopathic Specialties apart from good manufacturing practices (GMP), national and international production guidelines are taken into consideration and they are prepared strictly following the German Homoeopathic Pharmacopoeia. It is further averred that the medicines are manufactured for different diseases and ailments, and were numbered initially as R 1 to R 75 and subsequently R 76 to R95 were added. The letter 'R' is derived from Dr. Reckeweg, the founder promoter of 'Dr. Reckeweg and Co. GMBH, Germany and the numerals 1,2,3 and so on indicate specialties of the medicinal formulations of the first Plaintiff. They aver that the numbering proceeded proportionally to the number of medicines manufactured to combat emerging diseases. Since the first Plaintiff administers strict and vigorous quality control, the R- Series with unique composition of ingredients, formulated after years of research and clinical efforts, it is submitted, generated much goodwill and reputation. These specialties R -1 to R-75 have been registered in the country of origin since 1978 and have the registration number indicated on the container itself. Relying upon the sales figures and figures relating to the expenditure on the promotion of the brand the Plaintiffs submit that there has been tremendous growth use and consumption resulting in ever increasing business of R-series of medicines.
4. The plaintiffs state that the R Series code is displayed on packaging containing homeopathic specialties and also on points of sale of those medicines. These have been used in India extensively since the year 1980. They also aver that the efficacy and consequent acceptability of these medicines is such that mere mention of letter 'R' in conjunction with the requisite numeral is considered as the first plaintiff's product. The first plaintiff is also the owner of the following copyrights of the literary works pertaining to the homeopathy.
(i) 'Homeopathy for total and safe cure 1-75' bearing No. L-18275/99, first published in India in 1982 and L-18357/99.
(ii) Homeopathic Specialties bearing L-18231 first published in India in 1982.
(iii) 75 Vishist Homeopathic Aushdhyan bearing No.18356/99 first published in 1982 (in Hindi)
(iv) 90 Homeopathic Specialities bearing L-18226/99 first published in India in 1982.
(v) 90 Vishist Homeopathic Aushdhyan bearing no.18355/99 first published in 1982 Hindi.
Apart from these, the plaintiffs also claim to have prepared and developed catalogues in English, Hindi and Bangla in relation to the R series of medicines, circulated free of cost in order to guide the intermediary stockists, practioners and users. In this regard the plaintiffs have placed on record copies of the registration certificates. They also aver as to the legal actions pursued by them in respect of their rights in R-series.
5. It is averred that on 28th June 2007 the plaintiffs noticed that the defendants were marketing homeopathic medicines under the alpha numeric series deceptively similar to the plaintiffs, as A-1 to A-75. It is submitted that though the products were launched formally, commercial distribution of the same had not commenced. It is alleged that not only did the defendants completely copy the alpha numeric series and corresponding ailment clearly indicated on each products but they also copied a substantial portion of the literature/catalogue which gives the unique composition and description of the homeopathic products amounting to brazen violation of Trade Marks Act and also that of Copyright Act. It is submitted that copies Series A-1 to A-75 are confusingly and deceptively similar to that of the plaintiffs as merely prefixing the letter 'A' in place of letter 'R' does not make them distinctive from the R series of the plaintiffs. They allege that the use of exactly the same numerals by the defendants for curing the same ailment, adopted by the plaintiffs and further circulation of exact copied literature for A - Series is a calculated attempt to trade upon and cash on the plaintiff's goodwill. They further allege that the defendants' dishonesty is established by the fact that since the homeopathic medicine of plaintiffs R-61 is not marketed in India (although sold in other countries of the world), the defendants also missed the medicine A-61 in their range, which is proof of blatant copying.
6. The Plaintiffs aver about the defendant's malafide intention, evident from the fact that the ailment cured by the defendants medicine labeled as A1 corresponds to the ailment in relation to the plaintiff's R1, and so on. Moreover, the mistakes committed by the plaintiff in spelling the description of its medicine labeled as R 29 and R 47 is also identically copied by the defendants in naming its medicines labeled as A 29 and A 47. Further, almost all names given by the defendants to its homeopathic medicines are identical to the names given by the plaintiff in its products or in its literature in the current edition.
7. The plaintiffs submitted a chart comparing the terms used by them and the defendants in their products and literature, parts of which are extracted below ('A' series being that of the defendants and 'R' series being of the plaintiff:
Compilation of Medicines with Potencies
Ailment
Curative Effect Compilation
Apis Mell, 4X, Bar. Chlor. 6X, Belladonna 4X, Calc. lod. 4X, Hepar Sulph 12X, Kali. Bich 4X, Teurium Marum Virum 6X, Mer. Corr. 5X, Phytolacca 4X
Inflammation Drops
Acute and Chronic inflammations.
R1
Apis Mell, 4X, Bar. Chlor. 6X, Belladonna 4X, Calc. lod. 4S Marum verum 6X, Mer. Sub. Corr. 5X, Phytolacca 4X
Inflammation Drops
Local Inflamations, acture and chornic, of catarrhal and purulent nature, with swelling of the glands. Sudden infections and high fever, with irritations of the meninges, conjunctivas and pharynx.
Acidum Phos. 3X, Baptisia Tinctoria 4X, Chamomilla 4X, Chin. Ars. 3X, Colocynthis 6X Ferrum Phos. 8X, Mer. Corr. 5X Oleander 6X, Rhus Tox. 4X, Veratrum Album 6X
Diarrhoea Drops
Acute and chronic Gastro-colitis.
R4
Acidum Phos. 3X, Baptisia 4X Chamomilla 4X, Chin. Ars. 3 X Colocynthis 6X, Ferrum Phos, 8X Mer. Subl. Corr. 5X, Oleander 6X, Rhus Tox,l 4X, Veratrum Album 6X
Diarrhoea Drops
Acute and chronic gastro -enterocolitis of all types. Summer diarrhea after a chill or faulty diet. Intestinal catarrh, intestinal influenza, diarrhea with fever, abdominal typhus, paratyphus, typhoid fever, dysentery.
Anacardium Occ. 6X, Argentum Nit, 6X, Arsenicum Alb. 4X, Atropinum 6X, Carbo Veg. 8X, Chamomilla 2X, Chelidonium Maj. 3X, Lycopodium 5X, Nux Vomica 4X, Scrop. Nod. 1X
Stomach Drops
Acute and chronic gastritis Heartburn, flatulence.
R5
Anacardium 6X, Argentum Nit, 6X, Arsenicum Alb. 4X, Atropinum 6X, Carbo Veg. 8X, Chamomilla 2X, Chelidonium Maj. 3X, Lycopodium 5X, Nux Vomica 4X, Scrop. Nod. 1X
Stomach Drops
Especially ulcus parapyloricum. Acute and chronic gastritis, dyspepsia, chronic relapsing gastritis with or without ulceration. Heartburn, bad taste in mouth, frequent belching, flatulence meteorism. Acts on the inflamed mucosa of stomach, on the physiology of stomach.
A6
Baptisia Tinctoria 4X, Bryonia Alba 4X, Camphora 3X, Causticum 6 X, Eucalyptus G. 3X Eupatorium Perf. 3X, Ferrum Phos. 8X, Gelsemium Sempervirens 6X, Sabadilla 6X
Influenza Drops
Especially influenza and Acute feverish inflammations of the fibrous tissues.
R6
Baptisia Tinctoria 4X, Bryonia Alba 4X, Camphora 3X, Causticum 6 X, Eucalyptus G. 3X Eupatorium Perf. 3X, Ferrum Phos. 8X, Gelsemium Sempervirens 6X, Sabadilla 6X
Influenza Drops
Specific serous remedy, especially influenza. Acute feverish inflammations of the fibrous tissues and the serous membrances. General infection with pain in the limps, sensation of prostr4ation, dull head-aches, restlessness. Dry and burning skin, acute pains. Feverish catarrh of the mucosa of the upper air- passages, rhnopharyngitis, influenza bronchitis, pneumonia, inflammation of the serous membranes, pleurisy, pericarditis, peritonitis, irritation of the peritoneum during inflammatory process of the abdominal organs.
Belladonna 4X, Bryonia Alba 3X Coccus. Cacti 6X, Corallium Rub. 12X, Cup. Acet. 12X, Drosera Rot. 4X, Ipecacuanha 6X, Spongia Tosta 6X, Sticta pulmonaria 4X, Thymus vulgaris A.
Cough Drops
Effective expectorant in chronic bronchitis, whooping cough at all stages.
R9
Belladonna 4X, Bryonia Alba 3X Coccus. Cacti 6X, Corallium Rub. 12X, Cup. Acet. 12X, Drosera Rot. 4X, Ipecacuanha 6X, Spongia Tosta 6X, Sticta pulmonaria 4X, Thymus vulgaris A.
Cough Drops
Catarrhal affections of the upper air passages. Rhinolaryngopharyngitis, especially bronchitis and whooping cough at all stages. Effective expectorant in chronic bronchitis, bronchial asthma, fits of coughing in phthisis.
A22
Grindellia robusta 4X Naja Tripudians 12X Lachesis 12X
Cardiopulmonary Drops
Nervous disturbances, oppression and suffocation, following flatulence. Anginous condition of the heart.
R22
Grindellia robusta 4X Naja Tripudians 12X Lachesis 12X
Drps for Nervous Disorders
Nervous disturbances, oppression and suffocation, following flatulence. Anginous condition of the heart.
A23
Apis Mell 30X Ars. Album 30X Rhus Toxicodendron 30X
Skin Drops
Acute and chronic eczema, pimples, herpes, rashes, eschar.
R23
Apis Mell 30X Ars. Album 30X Rhus Toxicodendron 30X
Eczema Drops Acute and chronic eczema, pimples, herpes, rashes, eschar.
8. The plaintiffs next allege the defendants have violated their copyright in literary works when they reproduced unique compositions of their medicines, since they hold proprietary rights in such formulations by virtue of the registered copyright in the literature. In view of the above the plaintiffs seek an order restraining the defendants from passing off their products as those of the plaintiffs' and also for restraining the defendants from infringing their copyright. plaintiffs in their literature.
9. Mr. Amit Sibal, learned counsel appearing on behalf of the plaintiff contended that dishonest practices of the defendants in copying the omissions and also mistakes in the series as well as the description of the medicines, prove beyond doubt that they seek to pass of their goods as that of the plaintiffs and are liable for passing off. Given that the case at hand involved medicinal preparations, he relied upon the judgment in Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.., (2001) 5 SCC 73 to assert that since the defendants products were deceptively similar to that of the plaintiffs, injunction must be granted. He further argued that the plaintiffs' copyright in relation to four elements, that is the alpha numeric used, the medicinal formulation along with the respective potencies, description of the ailment and its curative effect compilation have been violated. Placing reliance on the decision reported as Burglington Home Shopping Pvt. Ltd., Vs. Rajniah Chibber PTC (15) 1995 279, he argued that the compilation of the ailments and medicines in a particular manner, in ascending numeric sequence (R-1, R-2. R-3, etc), by expending time, money, labour and skill amounts to a 'literary work' in which copyright subsists. Further reliance was placed on Himalaya Drug Company Vs. Sumit 2006 (32) PTC 112 (Del) to show that copyright vests in database of herbs. Similarly, reliance was also placed on Shyam Lal Paharia v. Gaya Prasad Gupta, AIR 1971 All 192 to argue that a compilation made from a common source falls within the ambit of literary work.
10. At the very outset the defendants draw the attention of this Court to the order dated 4th January 2002 in Dr. Reckweg Vs. Dr. Wellnan Laboratories, 2002 (25) PTC 98(Del) where this court refused to injunct defendants from using WR 1, WR 2 and so on, as a alpha numeric series, in a similar action brought by the plaintiff. They contended that the court there concluded that no case of passing off was made of in relation to R 1 series and WR 1 series. They allege that the plaintiffs willfully did not disclose this order to the Court. The defendants next submit they have obtained the necessary approval from the controller of Drugs to market their products. They submit that the plaintiffs products could not be granted protection under the Patents Act due to operation of Section 3 which states that any process of medical treatment of human beings is not patentable. Therefore, they argue that what protection to the formulation of the medicines cannot be given under patent law, cannot be indirectly given under the law of copyright. However, they claim that the compositions and formulation of the medicines are not exclusive to the plaintiffs. These compositions of medicines are found, according to defendants in various Homeopathic Pharmocoepia including the Homeopathic Pharmocoepia of India, the United States Homeopathic Pharmocoepia and the German Homeopathic Pharmocoepia.
11. The defendants allege that from June 1997 the plaintiffs changed in their labels, and the names of their medicines. They added to the names, words which are used in common parlance to describe the ailment or its symptoms (hereafter 'description'). They allege that this amounts to appropriation of phrases which are publici juris and therefore, no copyright can be claimed on them. They aver the following examples :
Formulation/series
Description
(1) Gripfekton for R-6 to Gripfekton - Influenza drops for R-6
(2) Prabhaemorrhin for R-13 to Prahaemorrhin - Hemorrhoidal drops for R-13
(3) Cobralactin for R-17 to Corbralactin - Tumour drops for R-17
(4) Fortivirone for R-41 to Fortivirone - Sexual neurasthenia drops for R- 41
(5) Laryngin for R-45 to Laryngin - Illness of the Larynx for R-45
(6) Rhinopulsan for R-49 to Rhinopulsan' Acute and Chornic Catarrh, sinusitis for R-49
Further, the defendants claim that the plaintiffs have deliberately not drawn the attention of this court to the fact that apart from using the alpha numeric series, they also used names to which these common phrases were added. These names were never copied by the defendant. Therefore, they submit the plaintiffs have not made out a case for violation of copyright or passing off.
The Trademark Claim
12. The issue of passing off will be addressed first. The law of passing off seeks to protect the goodwill of the proprietor, from being dishonestly appropriated by others. In that sense, the principles of the law relating to passing off can be applied only in relation to the shape, configuration, get-up etc of the product and does not extend to any literature in relat6ion to the products. The law relating to passing off an grant of injunction have been fairly well settled through the pronouncements in Ruston & Hornsby Ltd. v. Zamindara Engineering Co.†., (1969) 2 SCC 727, Parle Products v. JP and Co., AIR 1972 SC 1359, Amritdhara Pharmacy v. Satya Deo Gupta , AIR 1963 SC 449, Heinz Italia v. Dabur India (2007) 6 SCC 1 and Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.., (2001) 5 SCC 73. It has been consistently held that injunction can be granted only if the marks are identical and deceptively similar, so as to cause confusion in the minds of the public. The Supreme Court has also ruled that to ascertain whether a mark in deceptively similar, one must look at it as a whole and not in distinct parts. The Court has further laid down that the broad and essential features of the marks will have to be compared with a focus on similarities rather than dissimilarities.
13. Now, the alphabet 'R' in the series used by the plaintiff is quite distinct from the 'A' used by the defendants in its series - both visually and phonetically. The essential feature of the plaintiffs' mark 'R', (which stands for Reckeweg) does not find a place in the defendants mark. The colour scheme and 'get up' of the two marks are also entirely different. The alphanumeric series is not registered. In cases relating to passing off, the standard to be adopted is that of deceptive similarity. The test is whether keeping both makes together, an unwary customer would believe that the defendant's products are associated with the plaintiff. Here the plaintiff's mark, i.e., the individual alphanumeric series are printed in colours such as Red, Green, Yellow and Blue, of distinctive shades. The plaintiff's name is displayed prominently. The defendant's alpha-numerals are entirely different; their labels are printed vertically - the plaintiff's being horizontal. Most importantly, there is no similarity in the typesetting, and colour scheme. The defendant's alpha-numeral descriptions are all set out, without exception in green 'drop' background - entirely dissimilar to the plaintiff's. The defendant's name is displayed prominently, on the packaging. Therefore, it can be gleaned that an average, unwary consumer will not associate the defendants' products to the plaintiff, and no immediate cause in relation to passing off is made out.
The copyright claim
15. The plaintiffs have claimed violation of copyright in relation to the entirety of their relevant literature. A close look at the pleadings will reveal that copyright has been pleaded only in relation to their products. Nevertheless the Court proposes to deal with the issue of copyright in relation to the nomenclature of drugs, the listing of the medicines in a particular fashion, the description and the curative effect compilation.
16. The exposition of law, through various decisions in India and abroad has established that the law copyright affords protection only to the expression of the idea and not to the idea as such. That is to say, the law protects the method and manner in which the idea is conveyed to others. But every such manner or method of presentation of an idea is not copyrightable. The law requires that only those expressions that are fixed in a medium and are original can be protected under copyright law. In India Section 13 of the Copyright Act states that only original literary, artistic, dramatic and musical works can be subject matter of copyright. A literary work in order to qualify as work in which copyright can subsist, must be original.
17. Originality, then, forms the crux of this case. The Copyright Act does not define 'originality' and therefore, judicial decisions have to be looked into. In University of London Press Ltd. Vs. University Tutorial Press Ltd., (1916) 2 Ch 601, the Court (in the context of originality of question papers in a University examination) laid down that originality meant not originality of thought, but originality of skill and labour. Therefore, if the person or author had expended money, labour and skill, the work was considered original, worthy of protection. This standard later came to be known as the “sweat of the brow” doctrine. The court was guided by the principle that 'what is worth copying is prima facie worth protection'. In relation to compilations and lists, the English law largely was that so long the sweat of the brow doctrine was satisfied and the complication conveyed meaningful information, copyright should be granted. This principle was followed in British Broadcasting Co. Vs. Wireless League (1926) Ch. 433, (copyright on broadcasting schedules), Exchange Telegraph Co. Ltd., Vs. Gregory and Co. (1896) 1 QB 147 (Stock exchange prices) Payer Components South Africa Ltd., Vs. Boris Gaskets ( 1996) 33 IPR 406 etc. This view was followed in India also in Burlington Home Shopping Pvt. Ltd., Vs. Rajnish Chibber (Supra) where a list of customers developed by devoting time, labour money and skill was held to a work in which copyright subsists. A similar view was also taken in Shyam Lal Vs. Gaya Prasad (Supra).
18. However, there were a few decisions that held that mere selection did not confer originality and in order to get protection additional skill was necessary. (Cramp Vs. Sraythson, (1994) AC 329). The position taken by the Supreme Court of the United States has been enlightening in this regard, and in a sense, broke new ground about what is expression worthy of protection; what is 'literary' work. In Fiest Publication Inc. Vs. Rural Telephone Service, 199 US 340 (1991) the question whether copyright protection could be granted to a list of phone numbers and its users, was considered. The US Supreme Court held that a merely expending time, energy and labour would not be sufficient to grant copyright. Rejecting the “sweat of the brow” doctrine, the Court ruled that the doctrine flouted basic copyright principles and it creates a monopoly in public domain without the necessary justification of protecting and encouraging the creation of writings by authors. The Court observed that:
The “sweat of the brow” doctrine had numerous flaws, the most glaring being that it extended copyright protection in a compilation beyond selection and arrangement -- the compiler's original contributions -- to the facts themselves. Under the doctrine, the only defense to infringement was independent creation. A subsequent compiler was not entitled to take one word of information previously published, but rather had to independently work out the matter for himself, so as to arrive at the same result from the same common sources of information.” (internal quotes omitted)
The Court further held that a work, in order to be called original must contain at least a 'Modicum of creativity'. In that sense there must be intellectual originality and creativity. The level of such creativity, of course, would vary from case to case to render the work copyrightable. It noted that:
“… the originality requirement is not particularly stringent. A compiler may settle upon a selection or arrangement that others have used; novelty is not required. Originality requires only that the author make the selection or arrangement independently (i. e., without copying that selection or arrangement from another work), and that it display some minimal level of creativity. Presumably, the vast majority of compilations will pass this test, but not all will. There remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent'. Such works are incapable of sustaining a valid copyright.”
Dealing with the question of copyright in compilations, the Court held that there could be no copyright on facts, which form the compilation, but only on the arrangement of those facts, if a minimal level of creativity could be established. Similarly, copyright could subsist on the manner of expression of facts only if such modicum of creativity were established. In this regard, the court observed:
“To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This principle, known as the idea-expression or fact-expression dichotomy, applies to all works of authorship. As applied to a factual compilation, assuming the absence of original written expression, only the compiler's selection and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.' (internal quotes omitted) These principles were applied in a number of judgments to determine the copyrightability of compilations, including BUC Int'l Corp. v. Int'l Yacht Council Ltd., 489 F.3d 1129 (11th Cir. 2007).
19. The legal position in Canada too could be discussed in this regard. In Tele Direct Inc. v. American Business Information Inc (1997) 76 C.P.R. (3d) 296 (F.C.A.), the Court of Appeals observed as follows:
“Essentially, for a compilation of data to be original, it must be a work that was independently created by the author and which displays at least a minimal degree of skill, judgment and labour in its overall selection or arrangement. The threshold is low, but it does exist. If it were otherwise, all types of selections or arrangements would automatically qualify, for they all imply some degree of intellectual effort, and yet the Act is clear: only those works which are original are protected. There can therefore be compilations that do not meet the test.”
The Supreme Court of Canada was, however, of the opinion that the real test of originality falls in between the extreme positions taken in the United Kingdom and United States. In CCH Canadian Ltd., Vs. Law Society of Upper Canada (2004) SCC 13, held that:
“For a work to be 'original' within the meaning of the Copyright Act, it must be more than a mere copy of another work.' At the same time, it need not be creative, in the sense of being novel or unique.' What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment.' By skill, I mean the use of one's knowledge, developed aptitude or practised ability in producing the work.' By judgment, I mean the use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise.' For example, any skill and judgment that might be involved in simply changing the font of a work to produce 'another' work would be too trivial to merit copyright protection as an 'original' work. 'While creative works will by definition be 'original and covered by copyright, creativity is not required to make a work original.”
In describing the standard evolved by it as a workable, yet, fair standard it observed that:
“The “sweat of the brow” approach to originality is too low a standard.' It shifts the balance of copyright protection too far in favour of the owner's rights, and fails to allow copyright to protect the public's interest in maximizing the production and dissemination of intellectual works.' On the other hand, the creativity standard of originality is too high.' A creativity standard implies that something must be novel or non-obvious - concepts more properly associated with patent law than copyright law.' By way of contrast, a standard requiring the exercise of skill and judgment in the production of a work avoids these difficulties and provides a workable and appropriate standard for copyright protection that is consistent with the policy objectives of the Copyright Act.”.
20. This shift in trend of copyright law in the United States and Canada was noted by the Supreme Court in Eastern Book Company v. DB Modak, (2008) 1 SCC 1. The Court in the context of evaluating the copyrightabliity in the reporting of the judicial judgments and orders, held that mere skill, labour and time expended will not qualify a work for copyright protection. It held that work must be original
“in the sense that by virtue of selection, co-ordination or arrangement of pre- existing data contained in the work, a work somewhat different in character is produced by the author”.
21. Our Supreme Court had the benefit of the two judgments of the United States Supreme Court and the Supreme Court of Canada. It noticed the original “sweat of the brow” doctrine and the low threshold of originality required for copyright protection. The Fiest Publication standard of 'modicum of creativity' too was noticed, as well as the impracticality of continuing with the sweat of the brow test. The court then noted the Canadian solution, i.e “exercise of skill and judgment in the production of a work”. It is enlightening to note that our Supreme Court noted that the two positions i.e the sweat of the brow on the one hand, and 'modicum of creativity' were extreme positions; it preferred a higher threshold than the doctrine of “sweat of the brow” but not as high as 'modicum of creativity'. Significantly the court then emphasized that the product, or the expression, in compilations, etc should be a 'work somewhat different in character.. produced by the author' to qualify for copyright protection. Thus, our law too has recognized this shift, and mandates that not every effort or industry, or expending of skill, results in copyrightable work, but only those which create works that are somewhat different in character, involve some intellectual effort, and involve a certain degree of creativity.
21. This being the position, it is now necessary to apply those principles in this case. First, the claim of copyright in relation to the nomenclature of the drugs in the series R1, R2 etc. 'R' is a part of the English Alphabet and the other part of the nomenclature is in the ascending order of the Hindu-Arabic numerals. It is an established proposition of law that names and titles, in the normal course, until it has qualities and characteristics of original creative work, cannot be afforded copyright protection. Thus, 'Dr. Martens' (R. Griggs Groups Ltd., Vs. Evans (2003) EWHC 2914 (Ch), 'Splendid Misery' (Dick Vs. Yates (1881) LR 18 Ch. D 76) and 'The Lawyers Diary 1986' (Rose Vs. Information Services (1978) FSR 254) were denied copyright protection expressing that doing so would lead to conferring monopoly on part of the English Language. Such use of alphanumeric series does not reveal any amount of creativity nor have the plaintiffs been able to demonstrate exercise of skill and judgment, as laid down in CCH Canadian. Therefore, no copyright can be granted on the nomenclature of the drugs as the R 1 series.
22. The plaintiffs have also claimed copyright in the medicinal formulation of their products. It is their admitted case, that they prepare their medicines as per the directions in the German Homeopathic Pharmocoepia. The chemical formulation of a medicine is mere information. As has been in the aforesaid cases, no person can claim copyright in mere information or an idea. That is so, because no person can claim authorship over facts or information, they can claim authorship only over expressions. If such claim over the formulation were to be endorsed, it would indirectly amount to granting them a right over the medicine itself, a right expressly unavailable under patent law to the plaintiffs. In Baker v. Seldon, 101 US 99 (1879), the US Supreme Court observed that
“To give to the author of the book an exclusive property in the art described therein, when no examination of its novelty has ever been officially made, would be a surprise and a fraud upon the public.”
Conceding the plaintiff's claim would mean that what could not be achieved for a narrower right (in point of time, i.e patent) would be granted for a greater length of time (copyright) without an examination of its inventive step. That, plainly is not possible under any legal regime. Therefore, the claim to copyright in the scientific formulation of the products will have to be rejected.
23. The claim of copyright on the curative element compilation comes next. The plaintiffs allege that the exhibition of the curative element compilation on the products by the defendants and also in their brochure violates their copyright in their brochure and literature. These curative element compilations employ certain medical and common terminology to convey what problems the medicines would cure. Again, the plaintiffs have failed to demonstrate how they have employed any skill, judgment and labour in describing the curative elements, let alone any creativity. There are certain ways in which such curative elements can be described and the present one is fairly common, employing standard terminology. In the absence of any additional averment as to the uniqueness of such description or intellectual creativity, this court is of the opinion that prima facie no copyright can subsist in the curative element compilation. Further, the plaintiff claims copyright on the description of the medicines. As has been averred by the defendant, the plaintiff used technical terms to describe the medicines and in June 1997 added phrases, commonly employed to further explain the nature of the medicines. Thus, 'Anginacid' after June 1997 became 'Anginacid- Inflammation drops'. From the documents, it can be easily gleaned that the defendant uses only the second part of the description - that which is commonly employed not merely in Homoeopathic medicines but also in other systems. The plaintiffs object to this use; and say that the defendants cannot 'appropriate' such titles and must use other descriptions. For example, it is contended that the plaintiff's 'cough drops' description cannot be copied and the defendants can use alternatives such as 'expectorant drops'. As noticed earlier, common conditions can be described or expressed only in a few well known ways. To say that the plaintiffs can claim protection of such common words would be to allow them to appropriate stretches of the language. Applying the logic pressed by the plaintiffs, whoever wishes to market similar products which are part of common lore, have to use different expressions; for instance in the case of 'fever' one would have to resort to 'high temperature'; and so on, so that the third or fourth trader in the market, entitled to legitimately sell his common products would yet be unable to describe the therapeutic properties or values. Here, further, no proof intellectual creativity or skill expended has been shown to satisfy the test indicated by the Supreme Court.
24. Most crucial among the claims of the plaintiff, is the one relating to the copyright over the sequencing of the medicines in a particular order. As stated above the plaintiffs manufacture their products as per the directions in the German Homeopathic Pharmocoepia. Therefore, being a derivative work, in the sense, of being a collection or sequencing of already existing information, the standard of creativity required to qualify as a work in which copyright subsists is higher than the standard required in cases of primary works. The plaintiffs have not specifically averred as to the manner in which the sequencing was done and the technique or criteria employed to place the medicines in that particular sequence. On the other hand they aver as to how, the list expands numerically as and when they discover or market a new medicine. In the plaint they state that:
“These numerals are going up over a period of time as the number of specialties are increasing to combat more and more emerging diseases. For example, there were specialties from R-1 to R-75 initially and later, R-76 to R-95 were added subsequently.' In the absence of any specific pleading in relation to the originality of the sequence, their claim to copyright in this regard too has to fail.
25. Lastly, the claim of copyright in relation to the literature of the plaintiff. That literature of the plaintiff is in fact a compilation of the names, the series of the medicines, its curative elements etc, which, as has been held above are not individually capable of being protected under copyright law. The brochure of the defendants, which the plaintiffs allege has infringed their copyright, only enlists the series, the names of the medicines and the curative effects- all three components on which no copyright can be claimed. The defendants have not copied the plaintiffs' literature in its entirety. It is true, that the defendants have copied some of the mistakes and omissions of the plaintiff committed in its literature. But law does not remedy every act of copying. Therefore, even if it were assumed that the literature of the plaintiffs, considered as a whole and not in parts, were capable of copyright protection, as has been held in Dr. Recekeweg and Ors v. SM Sharma 130 (2006) DLT 16, copying of individual factors, themselves not capable of copyright protection because of lack of creativity, cannot result in the grant of an injunction.
26. The plaintiffs' reliance on the judgment in Dr. Recekeweg and Ors v. SM Sharma 130 (supra) is of no avail. No doubt, the court felt persuaded to grant injunction in respect of the alphanumeric series, which is also part of the present claim. The order is an interim order, and cannot be given the same precedential deference as in the case of a final judgment, rendered after considering all evidence and contentions. The court felt that an overall consideration, of the infringing copy was called for, without considering the individual elements. While that is no doubt a relevant consideration, it is not the only or predominant test. The court has, where several components of copyright protection are claimed, examine each of them, and also the impact of protection of each (or denial of each) on the whole, while assessing the impact of the 'overall' assessment. Assessments are usually fact sensitive. Thus, in plain compilations, the author may not claim any copyright in the individual entries, but claim on the list itself. However, here the alphanumeric series, the sequence, the description, the formulation and the literature are all subject of claims; at least arguments were addressed in that regard. The court has rejected them all in the preceding paragraphs. Therefore, merely considering the overall effect would be falling back to the “sweat of the brow” standard, in this case, which recognized that what is worth copying is copyrightable. That era has passed; the Supreme Court has mandated a different standard, the scale of which is to be determined on a case sensitive basis, i.e some modicum of creativity.
27. In the light of the above conclusions, it is held that the plaintiffs' claims about the defendants violating its copyright by publishing brochures, is also prima facie without basis. For the above reasons, the application must fail; it is accordingly dismissed.