IN THE HONBLE HIGH COURT OF DELHI

NEW DELHI


TITAN INDUSTRIES
APPELLANT
Vs.
NITIN P. JAIN AND ANR
RESPONDENT



ON SUBMISSION TO THE HONBLE HIGH COURT OF DELHI

MEMORIAL ON BEHALF OF THE APPELANT
TITAN INDUSTRIES


SUBMITTED BY:
(SEMESTER VI, POLITICAL SCIENCE MAJOR)

INTELLECTUAL PROPERTY RIGHTS MEMORANDUM ON BEHALF OF APPELLANT


1

TABLE OF CONTENTS
INDEX OF AUTHORITIES........................
Judicial Decisions.....02
Statutes and other authorities...02
Books.......02
Dictionaries..........02
Websites.......02
ABBREVIATIONS..............03
STATEMENT OF JURISDICTION.....04
STATEMENT OF FACTS.............................................................................................................05
QUESTIONS PRESENTED...........................................................................................................06
SUMMARY OF ARGUMENTS.....................................................................................................07
___________________________________________________________________________
WRITTEN SUBMISSION.........08
___________________________________________________________________________







PRAYER FOR RELIEF12

INTELLECTUAL PROPERTY RIGHTS MEMORANDUM ON BEHALF OF APPELLANT


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INDEX OF AUTHORITIES
JUDICIAL DECISIONS
National Judgments
1. E M Forster v. A N Parasuram, AIR 1964 Mad 391.
2. George Hensher Ltd. v. Restawilen Upholstery (lancs) Ltd., (1975) RPC 31.
3. Ladbroke v. William Hill, (1964) 1 WLR 273.
4. Macmillan v. Cooper, AIR 1924 PC 75.
5. Maple & Co. v. Junior Army and Navy Stores, (1882) 21 Ch D 369 (CA).
6. Midway Mfg. Co. v. Dirkschneider, 571 F.Supp. 282 (1983)
7. Rupendra Kashyap v. Jiwan Publishing House, (1996) PTC 439 (Del).
8. University of London Press Ltd. v. University Tutorial Press Ltd., (1916) 2 Ch 601.
STATUTORY AND OTHER AUTHORITIES
1. The Copyright Act, 1957
BOOKS
1. Melville B. Nimmer and David Nimmer, Cases and Materials on Copyright (7th ed.
2006), LexisNexis Matthew Bender, United States.
DICTIONARIES
1. BLACKS LAW DICTIONARY (West Group Publishers, 2002)
2. THE LAW LEXICON, BAKSHI, P. M., Ashoka Law House, New Delhi.
WEBSITES
1. www.manupatra.com
2. www.judis.nic.in

INTELLECTUAL PROPERTY RIGHTS MEMORANDUM ON BEHALF OF APPELLANT


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LIST OF ABBREVIATIONS

AIR .. All India Reporter
Anr .. Another
AP .. Andhra Pradesh
Ed .. Edition
Govt .. Government
Mad . Madras
No .. Number
Ors .. Others
P .. Page Number
PTC .. Patent & Trademark Cases
RPC .. Reports of Patent Cases
SC .. Supreme Court
SCC .. Supreme Court Cases
V .. versus
Vol .. Volume
WLR .. Wisconsin Law Review











INTELLECTUAL PROPERTY RIGHTS MEMORANDUM ON BEHALF OF APPELLANT


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STATEMENT OF JURISDICTION
The appellant has approached the Honorable High Court of Delhi under Order VII Rule 11
(d) of the Code of Civil Procedure.
INTELLECTUAL PROPERTY RIGHTS MEMORANDUM ON BEHALF OF APPELLANT


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STATEMENT OF FACTS

The plaintiff, Titan Industries Ltd., is a joint venture of Tata Group and the Tamil
Nadu Industrial Development Corporation (TIDCO). It was incorporated in the year
1987 and its activities include manufacture and marketing of watches, clocks and
jewellery.

The trade mark SONATA is enclosed in a device created by Chief Designer of the
plaintiff company during the course of his employment.

An instruction manual is distributed along with the watches created by another
employee of Design Department of the plaintiff during the course of his employment.

The watches of the plaintiff are sold in an attractive lay out. The said watch dials are
created by three-dimensional reproductions of the two-dimensional artistic works
created by the employees.

The cause of filing the present suit is the manufacturing and marketing of watches by
the defendants under the trade name SONA. It is alleged that the defendants have not
only adopted a deceptively similar trade mark, but have also adopted a similar layout
and get up for the packaging and have copied the dials of the plaintiff.







INTELLECTUAL PROPERTY RIGHTS MEMORANDUM ON BEHALF OF APPELLANT


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QUESTIONS PRESENTED

ISSUE
Whether there is infringement of copyright under the Copyright Act, 1957?



INTELLECTUAL PROPERTY RIGHTS MEMORANDUM ON BEHALF OF APPELLANT


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SUMMARY OF ARGUMENTS

There was an infringement of copyright under the Copyright Act, 1957
It is argued on the basis of relevant cases that the defendants are manufacturing and
marketing watches under the trade name SONA. They have not only adopted a deceptively
similar trade mark, but have also adopted a similar layout and get up for the packaging and
have copied the dials of the plaintiff. Thus, infringing the copyright of the plaintiff.

INTELLECTUAL PROPERTY RIGHTS MEMORANDUM ON BEHALF OF APPELLANT


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WRITTEN SUBMISSIONS

CONTENTION 1

There was an infringement of copyright under the Copyright Act, 1957.
Copyright can be defined as the exclusive and assignable legal right, given to the originator
for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or
musical material.
1

According to section 13
2
of the Copyright Act 1957, copyright subsists in the following
works:
i. Original literary, dramatic, musical and artistic work;
ii. Cinematograph films; and
iii. Sound recordings.
1.1 ORIGINAL ARTISTIC WORK
Section 2(c) of the Act says that artistic work includes any other work of artistic
craftsmanship.
3
In the case of George Hensher Ltd. v. Restawilen Upholstery (lancs) Ltd.
4
,
the question was whether the prototype protection was a work of artistic craftsmanship and
therefore, qualified for copyright protection. Two important questions arouse in this case.
First, is it the craftsmans intention to create something artistic that counts or rather the
perception by the public of artistic quality in the article? Second, what level of artistic
aspiration or attainment must be shown?
5


1
Oxford Dictionary of English, Oxford University Press (3 ed. 2010).
2
Section 13: Works in which copyright subsists. (Subject-Matter of Copyright)
3
Section 2(c) "artistic work" means- (i) a painting, a sculpture, a drawing (including a diagram, map, chart or
plan), an engraving or a photograph, whether or not any such work possesses artistic quality; (ii) work of
architecture; and (iii) any other work of artistic craftsmanship.
4
(1975) RPC 31.
5
Ibid.
INTELLECTUAL PROPERTY RIGHTS MEMORANDUM ON BEHALF OF APPELLANT


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As far as first question is concerned, Lord Russell was of the opinion that in order for a work
to be of artistic craftsmanship, it should be purchased for its aesthetic and not its functional
qualities.
6

In the instant case, all watches perform the same function but the reason a substantial
section of the public admires and values it is for its appearance i.e. its aesthetic qualities.
As far as second question is concerned, Graham, J. was satisfied that the prototype furniture
qualified for copyright because it had distinctive characteristics of shape, form and finish.
7

Similarly, in the instant case, the watches had a distinctive characteristic of shape, form and
finish.
8

Hence, the device is qualified to be an original artistic work.
1.2 ORIGINAL LITERARY WORK
An original literary work
9
is the product of the human mind which may consist of a series of
verbal or numerical statements capable of being expressed in writing, and which has been
arrives at by the exercise of substantial independent skill, creative labor, or judgment.
Any original literary work may enjoy protection even though it is devoid of any aesthetic
merit. In University of London Press Ltd. v. University Tutorial Press Ltd.
10
, it was stated that
the words literary work covered work which was expressed in print or writing, irrespective
of the question whether the quality or style was high.
11

Test of Originality
For a work to be original, it is important that it should not have been copied from another
work. It was held in Macmillan v. Cooper
12
, that it was the product of the labour, skill and
capital of one man which must not be appropriated by another. Thus, a work may be

6
(1975) RPC 31.
7
Ibid, p 40.
8
As per statement of facts.
9
Section 2(o) of the Copyright Act, 1957.
10
(1916) 2 Ch 601.
11
Ibid.
12
AIR 1924 PC 75.
INTELLECTUAL PROPERTY RIGHTS MEMORANDUM ON BEHALF OF APPELLANT


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original if the author has applied his skill or labour, even though he has drawn on
knowledge common to himself and others or has used already existing material.
13

In Rupendra Kashyap v. Jiwan Publishing House,
14
the court held that the word original did
not imply any originality of ideas, but merely meant that the work in question should not be
copied from some other work and should originate from the author being the product of his
labour and skill.
15
Also, catalogues
16
and guide books
17
comes within the scope of original
literary work.
In the instant case, the instruction manual was distributed along with the watches which had
a literary content. Though it didnt have any aesthetic merit but it was expressed in print.
Moreover, it was a product of skill and labor of author, even though he has drawn on
knowledge common to himself and others or has used already existing material. Hence, the
device is qualified to be an original literary work.
18

Thus, the device manufactured by the plaintiff along with its instruction manual comes
within the subject-matter of copyright and hence protected under it.
1.3 INFRINGEMENT OF COPYRIGHT
Section 51
19
of the Act states when a copyright in a work is infringed. Copyright in a work
may be infringed by copying that work. If the defendant copies the plaintiffs work with some
minor alterations or additions, infringement will be said to have taken place.
20
In Ladbroke v.
William Hill
21
, the question whether the defendant has copied a substantial part depends
much more on the quality than the quantity of what has been taken.
22


13
Ibid.
14
(1996) PTC 439 (Del).
15
Ibid.
16
Maple & Co. v. Junior Army and Navy Stores, (1882) 21 Ch D 369 (CA).
17
E M Forster v. A N Parasuram, AIR 1964 Mad 391.
18
As per statement of facts.
19
51. When copyright infringed Copyright in a work shall be deemed to be infringed- (a) when any person,
without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in
contravention of the conditions of a licence so granted or of any condition imposed by a competent authority
under this Act- (i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the
copyright,
20
VK Ahuja, Law relating to Intellectual Property Rights, LexisNexis Butterworths, Nagpur (1
st
Edn. 2012) p.
144.
21
(1964) 1 WLR 273.
22
Ibid, p. 276.
INTELLECTUAL PROPERTY RIGHTS MEMORANDUM ON BEHALF OF APPELLANT


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If the evidence shows that there are striking similarities between the two works, that the
plaintiffs work was earlier in time and that the defendant had the opportunity to get to know
that plaintiffs work, then presumption shall be that the defendant has copied from the
plaintiffs work, unless it is rebutted.
23

In the instant case, the watches are sold out by the plaintiff in an attractive layout and watch
dials are created by three-dimensional reproductions of the two-dimensional artistic works.
The defendants adopted a similar layout and get up for the packaging and have copied the
dials of the plaintiff. Moreover, the plaintiffs company has been into existence since the year
1987, thus giving the defendant sufficient opportunity to get to know its work.
24

Hence, the defendant has infringed the plaintiffs copyright.





23
Midway Mfg. Co. v. Dirkschneider, 571 F.Supp. 282 (1983)
24
As per statement of facts.
INTELLECTUAL PROPERTY RIGHTS MEMORANDUM ON BEHALF OF APPELLANT


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PRAYER

Wherefore, in the light of facts of the case, issues raised, arguments advanced and authorities
cited, this Court may be pleased to adjudge and declare for:
a) a permanent injunction,
b) delivery of rendition of accounts and damages.
And pass any other order in favor of the appellant that it may deem fit in the ends of justice,
equity, and good conscience.

A Al ll l o of f w wh hi ic ch h i is s r re es sp pe ec ct tf fu ul ll ly y s su ub bm mi it tt te ed d. .

Place: New Delhi
Date: 5
th
April, 2014
Paridhi Saxena
(On behalf of the Appellant)