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trademarks= grant of injunction against use of the trade name “MORGARDSHAMMAR” and the trademarks “MORGARDSHAMMAR LABEL” and “MH ARROW DEVICE” or any other mark identical or deceptively similar to the trademarks/ CS (OS) No. 863/2010 Page 69 of 69 trade name “MORGARDSHAMMAR LABEL” and “MH ARROW DEVICE” and “MORGARDSHAMMAR” of the plaintiff= Defendant No. 1 has to blame itself for the revocation of the license. Till the time defendant No.1 maintained the share holding of the plaintiff above 25%, plaintiff has permitted the defendant No. 1 to use the trade mark/trade name. It is only when defendant No. 1 reduced the share holding of the plaintiff in defendant No. 1 to less than 25%, plaintiff has exercised its option of revoking the license.

CS (OS) No. 863/2010 Page 1 of 69 IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) 863/2010 * Reserved on: 5th September, 2011 Decided on: 2nd January, 2012 MORGARDSHAMMAR AB ……….PLAINITFF Through: Mr. Suhail Dutt, Sr. Adv. with Mr. Abhixit Singh, Mr. A. Singh Gyani and Mr. Qazi Riaz Masood, Advs. Versus … Continue reading

defamation case against the google =information technology act -The complainant is engaged in business of manufacturing and selling of Asbestos cement sheets and allied products. It is alleged that A-1 viz., Gopala Krishna is a Co-ordinator “Ban Asbestos India” a group which is hosted by A-2 and publishes regular articles in the said group and that on 21.11.2008 an article was published in the said group and it was captioned as “poisoning the system; Hindustan Times” aiming at a single manufacturer of Asbestos cement products viz., the complainant and names of renowned politicians of the country G.Venkata Swamy and Sonia Gandhi who have nothing to do with the ownership or management of the complainant-company were named in that article. It is further alleged that on 31.07.2008 another article captioned as “Visaka Asbestos Industries making gains” and that both the above articles contained defamatory statements against the complainant and they are available in Cyber space in the form of articles for world wide audience. In the complaint, details of defamatory remarks made in several other articles published by A-1 in A-2 group are given in detail, which details may not be necessary for the purpose of disposal of this criminal petition.=It is only under the said amendment, non-obstenti clause was incorporated in Section 79 keeping application of other laws outside the purview in a fact situation covered by the said provision. Now, after the amendment, an intermediary like a network service provider can claim exemption from application of any other law in respect of any third party information, data or communication link made available or hosted by him; provided he satisfied the requirements under Sub-section (2) of Section 79. Further, as per amended Sub- section (3) of Section 79, the exemption under Sub-section (1) cannot be applied by any Court and cannot be claimed by any intermediary in case the intermediary entered into any conspiracy in respect thereof. Also, the intermediary cannot claim exemption under Sub-section (1) in case he fails to expeditiously remove or disable access to the objectionable material or unlawful activity even after receiving actual knowledge thereof. In the case on hand, in spite of the 1st respondent issuing notice bringing the petitioner about dissemination of defamatory material and unlawful activity on the part of A-1 through the medium of A-2, the petitioner/A-2 did not move its little finger to block the said material or to stop dissemination of the unlawful and objectionable material. Therefore, the petitioner/A-2 cannot claim any exemption either under Section 79 of the Act as it stood originally or Section 79 of the Act after the amendment which took effect from 27.10.2009. The present case in the lower Court was instituted in January, 2009 relating to the offences which are being perpetrated from 31.07.2009 onwards i.e., since long prior to the amendment to the said provision. 5) There is no exemption of any criminal liability in respect of a company which is a juristic person and which has no body that can be damned or contemned. In case found guilty, the petitioner company can be awarded with appropriate punishment though not corporal punishment. In that view of the matter, I find no merit in this criminal petition. 6) Accordingly, the Criminal Petition is dismissed.

THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU Crl.P.No.7207 OF 2009 19-04-2011 Google India Pvt. Ltd., M/s.Visaka Industries Limited and another Counsel for the Petitioner : Sri Nunepally Harinath Counsel for the 1st Respondent: Sri N.V.Anantha Krishna Counsel for the 2nd respondent: Public Prosecutor :ORDER: The petitioner/A-2 is accused of offences punishable under Sections 120-B, 500, 501/34 … Continue reading

Copyright Act, 1957: S.31 – Interpretation of – S.31(2) refers to case falling under clause (a) of sub-section (1) of Section 31 and not clause (b) thereof – In terms of s.31, Principles of Natural Justice are required to be complied with – The manner in which the Copyright Board dealt with the matter not approved – Order of the Board set aside and matter remitted to the Board for consideration of the matter afresh on merit – Administrative Law – Principles of Natural Justice – Constitution of India – Articles 14, 19(1)(g). Doctrines: Doctrine of purposive construction – Applicability of. International conventions, covenants and resolutions: Applicability of for the purpose of interpreting domestic statute, would depend upon the acceptability of the conventions in question – Where protection of human rights, environment, ecology etc. involved courts should not be loathe to refer to International Conventions. Marginal Notes: Where the statute is clear, marginal note may not have any role to play. Words & Phrases: `Work’, `public’, `compensation’, `royalty’ – Meaning of in the context of Copyright Act, 1957. First respondent is one of the leading music companies engaged in the production and/or acquisition of rights in sound recordings. It has copyright over a series of cassettes and CDs commonly known as T-series, containing cinematographic films and sound recordings. Appellant broadcasts under the brand name “Radio Mirchi”. It is a leading FM radio broadcaster. Disputes and differences arose between the holding company of the first respondent and Phonographic Performance Ltd. (PPL) as regards the playing of the songs of which copyrights belongs to the first respondent in their FM radio network. A suit was filed before the Delhi High Court for restraining the appellant from playing and broadcasting the music belonging to the first respondent on any of the Radio Stations belonging to the appellant. Various Radio Stations including the appellant filed an application before the Copyright Board at Hyderabad in terms of Section 31(1)(b) of the Act for grant of compulsory license to all the radio stations. The Copyright Board by a judgment and order dated 19.11.2002 fixed the standard rate of: Payment to be made at Rs.1200/needle hour during prime time. For 12 normal hours = 60% of standard rate For 8 lean (night) hours = 25% of standard rate and respondents also directed to furnish a security/bank guarantee of Rs.20,00,000/- per radio station to PPL. The Board also held that the same shall be operative for a period of 2 years and the matter shall be reconsidered again in September-October, 2004. Super Cassettes was not a party therein. The Board fixed royalties initially for a period of two years. An appeal thereagainst was preferred before Bombay High Court and it is the subject matter of C.A. No. 5181 of 2005. Appeals were filed before the Bombay High Court by the radio companies and PPL against the order dated 19.11.2002. 13 Appeals in total were filed before the Bombay High Court. The Bombay High Court by a common judgment and order dated 13.4.2004 in First Appeal Nos. 279-294 of 2003, 421 of 2003 and 1573 of 2003 remitted the matters back to the Copyright Board for reconsideration and for fixation of license fees. Appellant filed an application before the Copyright Board at Delhi, for grant of compulsory licence in terms of Section 31(1)(b) of the Act against Super Cassettes. The Application was allowed granting a compulsory licence. Appellant filed an appeal against the said order before the Bombay High Court questioning the rates of compensation only. The said appeal was tagged with various other appeals which had been filed before the Bombay High Court against the said order passed by the Copyright Board at Hyderabad. Respondents however preferred two-fold appeals before the Delhi High Court. By reason of the impugned judgment dated 30.6.2004, the respondent’s appeal has been allowed remitting the matter back to the Copyright Board to reconsider the application of the appellant for grant of compulsory license under Section 31 of the Act after giving adequate opportunity to the parties to adduce evidence and to dispose of the same by a reasoned order. The High Court furthermore directed that the appellant must file an undertaking that it would not broadcast the sound recordings of the respondent. Appellant had filed Petition for Special Leave to Appeal giving rise to Civil Appeal No. 5114 of 2005 in this Court. Thus there are two judgments before this Court, one from the Bombay High Court and another from the Delhi High Court. Whereas the Bombay High Court opined that in terms of Section 31 of the Act, grant of compulsory license on reasonable remuneration is permissible; the Delhi High Court held otherwise. The core questions which, arose for consideration were: (i) Whether the Copyright Board has jurisdiction under Section 31(1)(b) of the Copyright Act, 1957 to direct the owner of a copyright in any Indian work or a registered copyright society to issue compulsory licences to broadcast such as works, where such work is available to the public through radio broadcast? (ii) Whether in any event such a compulsory license can be issued to more than one complainant in the light of Section 31(2)? (iii) What would be the relevant considerations which the Copyright Board must keep in view while deciding on; (a) Whether to issue a compulsory license to a particular person; and (b) The terms on which the compulsory license may be issued, including the compensation?=Allowing the appeals, the Court HELD: 1.1 Applicability of the International Conventions and Covenants, as also the resolutions, etc. for the purpose of interpreting domestic statute will depend upon the acceptability of the Conventions in question. If the country is a signatory thereto subject of course to the provisions of the domestic law, the International Covenants can be utilized. Where International Conventions are framed upon undertaking a great deal of exercise upon giving an opportunity of hearing to both the parties and filtered at several levels as also upon taking into consideration the different societal conditions in different countries by laying down the minimum norm, as for example, the ILO Conventions, the court would freely avail the benefits thereof. [Para 19] [218-G,H, 219-A] 1.2 Those Conventions to which India may not be a signatory but have been followed by way of enactment of new Parliamentary statute or amendment to the existing enactment, recourse to International Convention is permissible. [Para 19] [[219-B]] 1.3 As regards the question where the protection of human rights, environment, ecology and other second-generation or third-generation rights is involved, the courts should not be loathe to refer to the International Conventions. [Para 19] [219-E] Gramophone Company of India Ltd. v. D.B. Pandey (1984) 2 SCC 534; Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225; Jagdish Saran and Ors. V. Union of India (1980) 2 SCC 768; Indian Handicrafts Emporium and Ors. V. Union of India (2003) 7 SCC 589; Motor General Traders and Anr. v. State of Andhra Pradesh and Ors. (1984) 1 SCC 222; Rattan Arya and Ors. v. State of Tamil Nadu and Anr. (1986) 3 SCC 385; Synthetics and Chemicals Ltd. and Ors. v. State of U.P. and Ors. (1990) 1 SCC 109; Liverpool and London S.P. and I Asson. Ltd. V. M.V. Sea Success I and Anr. (2004) 9 SCC 512; M.V. Elisabeth (1993) Supp. (2) SCC 433; The State of West Bengal v. Kesoram Industries Ltd. And Ors. (2004) 10 SCC 201; Pratap Singh v. State of Jharkhand and Anr. (2005) 3 SCC 551; Centrotrade Minerals and Metal Inc. v. Hindustan Copper Limited (2006) 11 SCC 245; State of Punjab and Ors. v. Amritsar Beverages Ltd. and Ors. 2006 (7) SCALE 587; State of Punjab and Anr. v. Devans Modern Brewaries Ltd. and Anr. (2004) 11 SCC 26; Anuj Garg and Ors. v. Hotel Association of India and Ors. (2008) 3 SCC 1; PUCL v. Union of India (1997) 3 SCC 433; John Vallamattom v. Union of India (2003) 6 SCC 611; Madhu Kishwar v. State of Bihar (1996) 5 SCC 125; Kubic Darusz v. Union of India (1990) 1 SCC 568; Chameli Singh v. State of U.P. (1996) 2 SCC 549; C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil (1996) 8 SCC 525; Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759; Kapila Hingorani Vs. State of Bihar (2003) 6 SCC 1; State of Punjab & Anr. Vs. M/s. Devans Modern Breweries & Anr. 2003 (10) SCALE 202 and Liverpool & London S.P. & I Asson. Ltd. Vs. M.V. Sea Success I 2003 (10) SCALE 1 – referred to The Berne Convention, Articles 11, 11bis; Rome Convention, Articles 3(f), 12; Copinger and Skone James on Copyright, 15th Ed.2005, para 2-5, page 27, Vol.1 and Black’s Law Dictionary, Seventh Edition – referred to. 2.1 The Copyright Act seeks to maintain a balance between the interest of the owner of the copyright in protecting his works on the one hand and the interest of the public to have access to the works, on the other. The extent to which the owner is entitled to protection in regard to his work for which he has obtained copyright and the interest of the public is a matter which would depend upon the statutory provisions. [Para 21] [221-B,C] 2.2 Whereas the Act provides for exclusive rights in favour of owners of the copyright, there are provisions where it has been recognized that public has also substantial interest in the availability of the works. The provisions relating to grant of compulsory license must be viewed having regard to the aforementioned competing rights wherefor an appropriate balance has to be stuck. [Para 21] [221-C,D] 2.3 The freedom to contract is the foundation of economic activity and an essential aspect of several Constitutional rights including the freedom to carry on trade or business guaranteed under Article 19(1)(g) and the right to property under Article 300A of the Constitution of India. But the said right is not absolute. It is subject to reasonable restrictions. [Para 21] [221-G,H, 222-A] 2.4 Section 30 enables the owner of the copyright to grant any interest in the copyright by a license in writing signed by him or by his duly authorized agent. The underlying philosophy of the Copyright Act is that the owner of the copyright is free to enter into voluntary agreement or licenses on terms mutually acceptable to him and the licensee. The Act confers on the copyright owner the exclusive right to do the various acts enumerated in Section 14. An infringement of copyright occurs if one of those acts is done without the owner’s license. A license passes no interest, but merely makes lawful that which would otherwise be unlawful. The Act also expressly recognizes the notion of an “exclusive license” which is defined in Section 2(j). But, that does not mean, as would be noticed from the discussions made hereinafter, that it would apply in all situations irrespective of the nature of right as also the rights of others. It means a licence which confers on the licensee, to the exclusion of all other persons (including the owner of the copyright) any right comprised in the copyright in a work. An exclusive licensee has specific rights under the Act such as the right to have recourse to civil remedies under Section 55 of the Act. This Scheme shows that a copyright owner has complete freedom to enjoy the fruits of his labour by earning an agreed fee or royalty through the issuance of licenses. Hence, the owner of a copyright has full freedom to enjoy the fruits of his work by earning an agreed fee or royalty through the issue of licenses. But, this right is not absolute. It is subject to right of others to obtain compulsory licence as also the terms on which such licence can be granted. [Para 21] [222-A-G] 3.1 The meaning of a word must be attributed to the context in which it is used. For giving a contextual meaning, the text of the statute must be kept in mind. An act of refusal depends upon the fact of each case. Only because an offer is made for negotiation or an offer is made for grant of license, the same per se may not be sufficient to arrive at a conclusion that the owner of the copyright has not withheld its work from public. When an offer is made on an unreasonable term or a stand is taken which is otherwise arbitrary, it may amount to a refusal on the part of the owner of a copyright. When the owner of a copyright or the copyright society exercises monopoly in it, then the bargaining power of an owner of a copyright and the proposed licensee may not be same. When an offer is made by an owner of a copyright for grant of license, the same may not have anything to do with any term or condition which is wholly alien or foreign therefor. An unreasonable demand if acceded to, becomes an unconstitutional contract which for all intent and purport may amount to refusal to allow communication to the public work recorded in sound recording. A de jure offer may not be a de facto offer. [Para 24] [226-E-H, 227-A] 3.2 Although the term `work’ has been used both in clauses (a) and (b) of sub-Section (1) of Section 31, the same has been used for different purpose. The said term `work’ has been defined in Section 2(y) in different contexts. It enumerates the works which are: (a) a literary, dramatic, musical or artistic work; (b) a cinematograph film; (iii) a sound recording. Thus, a literary work ex facie may not have anything to do with sound recording. [Para 24] [227-B,C] 3.3 There are indications in the Act particularly having regard to Sections 14(1)(a) and 14(1)(e) thereof that they are meant to operate in different fields. They in fact do not appear to be operating in the same field. Clause (a) refers to publication or republication of the work. It may be in print media or other medias. Clause (b), however, refers to broadcast alone. Sound recording is a part of it. Sub-clauses (i) to (vii) of sub-clauses (a) of sub-Section (1) of Section 14 and sub-clauses (i) to (iii) of sub-clause (e) conferred different meanings of the word copyright. Whereas clause (a) refers to work in general, clause (b) refers to work recorded in such sound recording, which in turn means the recording of sounds from which such sounds may be reproduced regardless of the medium on which such recording is made or the method by which the sounds are produced. Clause (b) ex facie does not fit in the scheme of clause (a). [Para 24] [227-C,D,E,F] 3.4 Interpretation of clause must be given effect to having regard to the limitations contained therein, namely, unless context otherwise requires. [Para 24] [227-F] 3.5 Communication to the public is possible by way of diffusion. Explanation appended to Section 2(ff) clearly shows the extensive meaning of the said term. Publication and republication of a work in general may be different from communication of a work recording in sound recording. The use of words `such work’ also assumes significance. The said words must be understood having regard to the fact that sound recording is also a work. If it is accepted that voluntary licenses have been entered into by the owners with All India Radio and some other Radio Broadcasters, then it is sufficient for closing the doors on another person to approach the Copyright Board. One may as well say that if it is provided to a satellite channel or a space radio, the same also would subserve the purpose for refusing to grant an application under Section 31 of the Act. [Para 24] [227-G,H, 228-A,B] 3.6 The word `work’ in the context of broadcast must be understood having regard to the fact that there are 150 F.M. licenses out of which about 93 are working. There are 300 broadcasters working in almost all the big cities in India. The word `public’ must be read to mean public of all parts of India and not only a particular part thereof. If any other meaning is assigned, the terms `on terms which the complaints considers reasonable’ would lose all significance. The very fact that refusal to allow communication on terms which the complainant considers reasonable have been used by the Parliament indicate that unreasonable terms would amount to refusal. It is in that sense the expression `has refused’ cannot be given a meaning of outright rejection or denial by the copyright owner. [Para 24] [228-C,D,E] 3.7 PPL and SCIL might have been called upon the broadcasters to enter into licenses and were willing to license their repertoire. But their contention was that if such terms are unreasonable, it amounted to refusal which would attract Section 31 of the Act. The word `communicate the work to the public by broadcast” is of significance. It provides for a mode of communication. Thus, only because a Registrar of a Copyright would be directed to grant a licence to communicate the work to the public by broadcast would not mean that only a single licence shall be granted. The Board acting as a statutory authority can exercise its power from time to time. It is therefore not correct to contend that having regard to the provisions of sub-section (2) of Section 31, compulsory licence can be granted only to one and not to more than one broadcaster. [Para 24] [228-F-H, 229-A] 3.8 Section 31(1)(b) in fact does not create an entitlement in favour of an individual broadcaster. The right is to approach the Board when it considers that the terms of offer for grant of license are unreasonable. It, no doubt, provides for a mechanism but the mechanism is for the purpose of determination of his right. When a claim is made in terms of the provisions of a statute, the same has to be determined. All cases may not involve narrow commercial interest. For the purpose of interpretation of a statute, the court must take into consideration all situations including the interest of the person who intends to have a licence for replay of the sound recording in respect whereof another person has a copyright. It, however, would not mean that all and sundry can file applications. [Para 24] [229-C,D,E] 3.9 Admittedly in terms of Section 31 of the Copyright Act the principles of natural justice are required to be complied with and an enquiry has to be held. The extent of such enquiry will depend upon the facts and circumstances of the case. A finding has to be arrived at that the grounds of refusal by an owner of a copyright holder is not reasonable. Only upon arriving at the said finding, the Registrar of copyright would be directed to grant a license for the said purpose. The amount of compensation payable to the owner of the copyright must also be determined. The Board would also be entitled to determine such other terms and conditions as the Board may think fit and proper. Registration is granted only on payment of such fees and subject to compliance of the other directions. [Para 24] [229-G,H, 230-A,B] 4.1 An owner of a copyright indisputably has a right akin to the right of property. It is also a human right. Now, human rights have started gaining a multifaceted approach. Property rights vis-=, 2008(9 )SCR165 , , 2008(9 )SCALE69 , 2008(7 )JT11

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5114 OF 2005 M/s Entertainment Network (India) Ltd. … Appellant Versus M/s Super Cassette Industries Ltd. … Respondent WITH CIVIL APPEAL NOS.5178-5180/2005, Phonographic Performance Limited …Appellant Versus Millineum Chennai Broadcast (P) Ltd. etc. etc. ..Respondents WITH CIVIL APPEAL NO. 5181/2005, Phonographic Performance … Continue reading

These appeals arise out of Judgment and Order passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi Bench [for short “CEGAT”] on 02.08.2002 whereby the Tribunal had allowed the appeals filed by the respondents holding that the respondents were not guilty of clandestine removal of excisable goods and also that the goods of

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 4500-4502 OF 2003 Commissioner of Central Excise, Mumbai …. Appellant Versus M/s. Kalvert Foods India Pvt. Ltd. & Ors. …. Respondents JUDGMENT Dr. MUKUNDAKAM SHARMA, J. 1. These appeals arise out of Judgment and Order passed by the Customs, Excise and Gold … Continue reading

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