The Judgment of the Court was delivered by

J. Shanmukham, J.:— These applications coming on for hearing the Court delivered the following Judgment:—

In all the applications the Plaintiffs are the applicants, while the defendant is the respondent.

2. Pending suit Application No. 3036 of 1981 is filed and the applicants seek the following prayer:—

(i) This Hon'ble Court should be pleased to pass an order of interim injunction restraining the respondents by themselves, their servants, agents, their printers and distributor's by an order of this Court from committing an infringement of copyright the applicants have in their literary and artistic work being their literature or leaflet being Exhibit marked as document Nos. 10 and 11 in the plaint by distributing printing or causing to be printed marked as document No. 13 in the plaint or any other leaflet or artistic creation which is a colourable imitation or in infringement of the applicants' artistic creation namely Document Nos. 10 and 11 in the plaint pending disposal of the case.”

3. Then in Application No. 3037 of 1981 under Order XIV Rule 8 O.S Rules and Clause 14 of the Letters Patent Act, the applicants seek permission to continue the following three causes of action in one suit:

(i) infringement by defendants of the plaintiffs' copyright.

(ii) infringement of the plaintiffs trade marks by the defendants.

(iii) the passing off by the defendants, all pertaining to plaintiffs carton of Glucose and defendant's carton of Glucose.

4. Application No. 3038 of 1981 filed by the applicants is to direct the respondents to furnish particulars of persons who constitute the respondent firm etc.

5. The grounds of attack were aimed at application No. 3036 of 1981 and they are:— (1) This Court has no jurisdiction, (ii) the application for injunction is belated, (iii) no Copyright can be claimed in respect of the word ‘Glucose’, (iv) there is no whisper that the plaintiff will not be in a position to recover the damages in case of its success in the suit.

6. Regarding Jurisdiction: Both rely on Section 62(2) of the copyright Act each interpreting it in its own way to support its claim or defence. It is necessary, therefore, to extract Section 62(1) and (2) of the Copyright Act (hereinafter referred to as the Act).

62(1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the District Court having jurisdiction.

(2) For the purpose of sub-section (1) a ‘District Court having jurisdiction’ shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain.

7. While it is the contention of the applicants that it can institute the suit either in a Court within whose local limits the principal place of business or its branch where its business is effectively carried on, is situate, the defendant submits that it is the principal place of business that is material. According to the defendants, it is the only reasonable interpretation of Section 62 of the Act and therefore as the head office of the plaintiffs is at Bombay, Courts in Bombay alone will have jurisdiction. The learned counsel for the defendants relies on the decision in 84 L.W 158 : AIR 1971 Mad 363 (M.S.M. Buhari v. S.M. Buhari) in this connection. I find that Mr. Ismail, J. (as he then was,) was concerned with the meaning of the expression “actually and voluntarily resides”, and held thus:

“When the statute used the words “actually and voluntarily resides”, it intended to eliminate a constructive or a temporary absence from that place which will not take away the case out of the scope of Sec. 20(a) of the Code. It may very well happen as it occurs in many cases, that a person carrying on business in the city of Madras or any other profession in the city, living in his own house, has also a house owned by him in a place like Kodaikanal or Ootacamund, to which house he regularly goes every year during summer and resides there. From this fact alone it cannot be said that he has two permanent places of residence, one in the city of Madras and the other in Kodaikanal or Ootacamund, as the case may be. The fact that a particular defendant has made a house available to him for occupation whenever he goes to that place for stay for a certain period during the course of a year will not make him a permanent resident of that place.

A person may be originally belonging to a particular place and may hold landed property there and he may be making enquiries about the properties and he may be deriving income therefrom. This, however, does not mean that he is actually and voluntarily residing there, since residence is not identical with ownership, but it means where a person eats, drinks and sleeps or where his family or his servants eat, drink and sleep.”

8. It is pertinent to notice the significance of adverbs employed viz., actually and voluntarily. It is the presence of these adverbs which had pursuaded the learned Judge to hold that such expression is intended to exclude a constructive or temporary residence. Here, I am concerned with the meaning of “carries on business”. If the contrast as between the two expressions viz., “actually and voluntarily resides” and “carries on business” is properly perceived, it would reveal that while there is limitation, regarding residence, there is no such restriction with reference to ‘carrying on business’. This, in my opinion, is a clear indication of “carries on business” not referring to the only principal place of business. If the Legislature intended to mean the principal place only, it would have suitably qualified the expression “carries on business”. The plain meaning of the above expression will only convey that wherever there is business activity - be it the principal place or branch or branches the party is said to carry on business in all such places.

9. I have to my support the decision in Kanshi Ram v. Dule Rai & Co., AIR 1933 Lahore 11, On the following facts that a suit was brought against a firm for rendition of accounts in the Court at Amritsar, and the defendant firm had its head office in Bombay and the evidence showed that it had a regular sub-office in Amritsar, that all correspondence with the customers at Amritsar was conducted by the defendant through this sub-office, that orders were received here, and that moneys were received and disbursed by the sub-office, and in some cases the Amritsar sub-office passed receipts, and the orders placed by the customers with the Amritsar office were not binding until they had been accepted by the head office at Bombay, Tekchand, J held that the defendant firm was carrying on business at Amritsar.

10. In Section 62(2) a deliberate departure is made from Section 20 of the Code of Civil Procedure to enable the Plaintiff to sue one who infringed his copyright in the Court within whose local limit he carried on business at the time of the institution or other proceedings. That such a privilege extended to a plaintiff to the prejudice of the defendant cannot be doubted. This additional factor will also suggest that the expression.

“carries on business is too wide to embrace the branch or branches where the business activities are carried.”

11. The decision in The The Tata Oil Mills Co. Ltd…Plaintiff v. Hansa Chemical Pharmacy…Defendant, ILR (1979) 2 Delhi 236, cited by the learned counsel for the applicants is of no assistance because it was not concerned with the question as presented before me.

12. In view of my above consideration. I am unable to agree that the following “where there are more than one such person” does throw any light in understanding the true meaning of “carry on business”. Nor I am impressed with the submission that because in Col. (2) in the printed form the principal place of business but not branch office is disclosed, only the principal place of business will determine the suits of the Court, for the simple reason that any provision in a statute has to be construed reading the statute as a whole, but such interpretation will not be influenced by any document in the possession of any party to the suit.

13. In view of the foregoing consideration I hold that this Court has Jurisdiction. Point No. (ii) to (iv). Referring to document No. 7 which is the photostat extract from the register of Copyright, learned counsel for the defendant contended that no sanctity should be attached to this document or the contents the rein, because under the rules, the applicant is bound to submit the application in triplicate forms, that on receipt of such application by the Office, mechanically, seal is affixed on one of the forms and returned to the applicant by post. Such comment was provoked at the instance of the defence, because the applicant relied on column No. 8 in the said document to support his case that the copyright was published before the date of the said application., viz., 1976. I am unable to accede to such an argument, because no material is placed before me in support of it: on the other hand, Section 48 of the Copyright Act provides:

“The Registrar of Copyright shall be prima facie evidence of the particulars entered therein and documents purporting to be copies of any entries therein, or extracts therefrom certified by the Registrar of Copyrights and sealed with the seal of the copyright office shall be admissible in evidence in all Courts without further proof or production of the original.”

14. It is almost a provision similar to that of Section 68 of the Indian Partnership Act. It is therefore evident that document No. 7 filed along with the plaint is prima facie evidence of the particulars entered in the register of copyrights, because it purports to be copy of the entries in the register of copyrights and having the seal of the copyright office. Then, there is prima facie proof of the fact that the work was published as early as 1976.

15. It is also contended by the learned counsel for the defendant that there can be no copyright in respect of the common word Glucose. The said argument overlooks the vital fact, viz., the copyright is claimed not in respect of the word ‘Glucose’ alone but in respect of the carton containing the particular background colour viz. ‘green’ the inverted triangle containing the words Glucose-D, at the bottom, pictorial representation of a family consisting of father, mother and child in a drinking position taken as a whole. To sustain a complaint of infringement, the law does not require that the imitated one should be a carbon copy of the original copyright; on the other hand, what is essential is that there is reproduction of substantial part of the original copyright. The most crucial aspect is: the copy has to pass off as the original to an unwary purchaser to establish the complaint of infringement.

16. In this case, a glance at the plaintiffs' copyright Glucose-D kept by the side of the defendant's carton can easily be misunderstood as that of the plaintiff's carton. The distinguishing features are such as instead of Glucose-D in the Plaintiffs' carton, we find in the defendant's carton, D Glucose; there is an addition of one more child in the defendant's carton and the background is green, though the defendant's carton is little darker than the plaintiffs'. These are too immaterial to lend any support to the defence. These apart, I find, the vital inverted triangle, the picture of a family holding the cups near their mouth are all vital materials which wills positively suggest that there is a re-production of Plaintiffs' carton by the defendant in the latter's carton. It is well laid down that it is the deception as it appears to unwary public rather than to an intelligent and careful person that is material to assess whether there is infringement of copyright by the defendant. In this case, the plaintiffs rest their claim both on Copyright Act and Trade and Merchandise Marks Act. Testing the two cartons in the above parameter, there can be no room for any doubt that the defendant's carton can easily pass off as the plaintiff's carton. Then it follows that the plaintiffs have established a prima facie case of infringement by the defendant not only of their copyright but also of their registered trade mark.

17. Therefore, I find this point in Plaintiffs' favour. It is seriously contended by the learned counsel for the defendant that it is nowhere whispered by the plaintiffs that the defendant firm is a pauper and that therefore, there is no reasonable prospect of the plaintiffs recovering the damages they might have suffered even if they were to succeed in this action. In my opinion, that is not the correct approach to be made in an action brought under the Copyright Act and/or Trade and Merchandise Marks Act. These are special statutes where anyone who has acquired the copyright or the trade mark, has the statutory protection from his mark being infringed by any third party. The relief of injunction is granted as a matter of course on the plaintiffs establishing that they had acquired such a copyright or a trade mark and that there was infringement. If the above contention of the learned counsel for the defendant were to be accepted, the very object of both these special enactments would be completely defeated. I have held that the plaintiffs have established a prima facie case of infringement both of their copyright as also trade mark at the instance of the defendant using the carton filed in this case. It is relevant to notice here that the defendant does not dispute that he is not using such carton exhibited in this case and as complained of by the plaintiffs; on the other hand, the defence is three fold as stated supra. Therefore, even this objection fails.

18. It is also contended that there had been an inordinate delay in the plaintiffs coming forward with this action. I find, here also there is no merit in the said contention. For, it is the case of the plaintiffs that they became aware of the defendant's user of their carton only in January, 1981. No doubt, in the counter, the defendant would dispute the said statement made at the instance of the plaintiffs. But, in my view, the probability leans towards the plaintiff, because a reputed firm like that of the plaintiffs would not have remained inactive had they been aware much earlier that there was infringement of their copyright or trade mark. Therefore, the plaintiffs cannot be accused of any laches so as to disentitle their to claim the relief sought for in this application.

19. The result is, application No. 3036 succeeds and the interim injunction granted by me is made absolute. Section 14 of the Letters Patent enables the Plaintiffs to continue the three causes of action in one suit. In fact learned counsel for the defendant addressed no argument in this connection. Besides, I find nothing in the counter raising any objection to accept this application. Therefore, there is no difficulty in accepting this application. Accordingly, prayer (1) in Application No. 3037 of 1981 is ordered. Application No. 3038 of 1981: As it is indicated in the counter affidavit that the defendant is a partnership firm of which the deponent of the counter, viz., Prabhakhar is a partner, this application in my opinion, is unnecessary. It is always open to the plaintiffs to have called upon the defendant to furnish such particulars, but, no such notice was served on the defendant. Therefore, the application in my view is rather premature. Hence, this application is dismissed. In all these applications, I make no order as to costs.