Act for Acts

Interim Application of Copyright and Trademark Registration in Cochin

Interim application seeking to restrain defendant from using catch word

On the conjoint reading of clause 1, definitions contained in clause 2 and clause 3A, it is clear that the rights assigned by the respondent 5 to respondent 6 included “all other right title and interest in and to the literary, dramatic and musical works embodied in the producer’s film”, the definition of producer’s film is provided under the definition clause which reveals all cinematographic films commenced and/ or under production during the period of this agreement and the extensions thereof, whether or not the production thereof may have been completed after the expiry of this agreement of interim application.

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Thus, the right assigned in the “producer’s film” which is defined to include all cinematographic films made during the period of the agreement include three rights which are literary, dramatic and musical works. The said clause 3A further uses the expression “All other right, title and interest”, likewise it also uses the expression “All rights of publication, sound, television, public performance”. Furthermore, the said clause 3A while assigning the copyrights uses the expression “absolutely” and “worldwide”. All these wordings used in clause 3A are prima facie indicators of the intent of the parties to the agreement which is to assign the rights absolutely and worldwide and all the rights available with the producers.

The said clause 3A when read with clause 1 which relates to term of the agreement alongside with the definition of the producer’s film under the definition clause which means all cinematographic films made during the said period of the agreement, the same may construed to mean that though the term of the agreement dated 29th September, 1983 was intended to operate for 3 years, the said agreement assigned all the rights in the cinematographic films made during the said periods which is called Producer’s films absolutely and on worldwide basis. Thus, the said agreement may be construed to mean that term of the operation of the agreement may be distinct from the term of the assignment of the copyright which uses the distinct wordings in assignment clause in clause 3A which reads “ all the rights”, “worldwide”, “absolutely”.

The parties do not dispute that the said cinematographic film NAMAK HALAL was released during the said period of 3 years as defined under the agreement. It is only the term of copyright which has been disputed by the appellant. The said term according to us upon reading of the clauses of the agreement would be governed by clause 3 A which reflects the intention to assign the copyright absolutely and worldwide. Thus, the agreement prima facie appears to assign the copyright absolutely for the cinematographic film or producer’s film made during the period of 3 years in the agreement.

The same view has been also adopted by the learned Single Judge in his order recording the finding as under: In terms of Clause 3A defendant no. 6 has been given copyrights for making records of all ‘contract works’ which are made available to the company, that is, defendant no. 6 as also the performing rights, including rights of publication, sound and television broadcasting, public performance and mechanical reproduction in respect of “producer’s films”. Work has been defined in Clause 2 of the agreement as literary, dramatic, musical or artistic work as defined in the Act. Producers’ films have also been defined in Clause 2, which provides that the producers’ films shall mean all cinematographic films commenced and/or under production during the period of the agreement but may have been completed after expiry of the agreement. Clause 11 further indicates that the defendant 1o. 5 had agreed that the agreement shall even govern the films which were under production; meaning thereby that the copyright and trademark registration in Cochin rein respect of the films which had commenced even in the month of October, 1984 but not completed, defendant no. 6 was given full right to exploit such films in the manner as detailed in the agreement. The Clauses of the agreement appears to be ambiguous and, thus, is all the more necessary to give a harmonious construction thereof.”

The said view if not conclusive one but can be a prima facie one of plausible view which can be formed on the basis of the meaningful reading of the clauses of the agreement. Accordingly, we find that upon reading the agreement dated 29th September, 1983, the said view adopted by the learned Single Judge as the one which can be prima facie a plausible one, if not conclusive which make the clauses of the agreement workable and operative in their field.

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We do not find merit in the submissions advanced by the learned counsel for the appellant challenging the impugned order and the same are dealt with as under:

  1. a) Firstly, we do not find merit in the submissions of the appellant that the term of the copyright is missing in the agreement and is confined to three years. We think that the term of the copyright is defined by the wordings used as “absolutely”, “worldwide” and similarly the royalty clause 12 D provides for payment of royalty for the period not exceeding the term of legally protectable copyright in the country. The usual term of copyright is for 60 years after the death of the author. Thus, if the royalty is intended to be paid for such period, coupled with the usage of the word “absolutely” and “worldwide”, for prima facie view, it can be said that the said agreement is not the one which assigns the rights for limited period but assigns the rights absolutely. Thus, the clause 1 as well as section 19 would have no bearing on the term of the copyright which is distinctly provided under clause 3A.

Therefore, the submission of the learned counsel for the appellant is rejected. We also do not accede to the submission of the learned counsel for the appellant that the reading of the clauses reveal that the rights assigned are confined to right to manufacture and sell the records in the musical work. We have already analyzed the clauses especially clause 3 A which explicitly reads “all rights”, “literary”, “dramatic” and “musical”. Accordingly, the said submission of the learned counsel for the appellant is rejected as incorrect. Similarly, learned counsel’s submission that the learned single judge has erroneously interpreted clause 3 A and 12 of the agreement can also not be accepted. This is due to the reason that clause 3 A assigns number of intellectual property rights and clause 12 talks about only one of the kind of eventuality relating to dealing with the manufacture of the records. There is no incongruity or inconsistency between the two clauses and clause 3 A as it stands in a broader sense can be a standalone clause unaffected by presence of clause 12.

The submission of the learned counsel for the appellant that the “lyric” rights may not be said to be vesting in the respondent no. 6 and as such could not have granted the license to respondent no. 1 and 2. As it is seen above in clause 3 A, the copyright assigned included “literary”, ““musical” and “dramatic”, thus, it is difficult to visualize a scenario where under the lyric right is separately retained when no such exclusion, proviso or exception exists in the assignment clause. Thus, the said submission is equally meritless. There is no other submission raised by the learned counsel for the appellant. It is now time to recite the principle of law which guides us while dealing with the challenge laid to the orders passed in the interim stage by way of appeal. It is well settled that the challenge to the grant or decline of the ad interim order is an appeal against the principle and the said findings arrived at by the court of the first instance ought not be upset solely to substitute the appellate court’s own view or also to arrive at the finding which could have been arrived had the matter been dealt with by the said appellate court as the court of first instance.

The findings against the grant or negation of the interim orders can only be reversed when the discretion is exercised arbitrarily or capriciously or perversely or where the order of the Court under scrutiny ignores the settled principles of law regulating grant or refusal of interlocutory interim injunction. We therefore find that the view adopted by the learned Single Judge while refusing the interim order is prima facie a plausible one especially considering the clauses of the agreement and collective reading thereof.

We also do not find learned Single Judge ignoring any settled principle of law regulating grant or refusal of the interim injunction of trademark registration in Cochin. Therefore, the findings of the learned Single Judge are unexceptionable and do not warrant interference by this court.

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