A company has filed FIR and criminal copyright infrigement case against me due to similarity in product package design. He does not have trademark registered. Only copyright of package wrapper design is there. Even the copyright certificate does not have noc/clearance from trademark office. The headings in copyright certificate that says: "14. If the work is 'Artistic work' which is used or capable of being used in relation to any goods or services, the application should include a certification from the Register of Trade Marks in terms of provision to Sub-Section(i) of section 45 of the Copyright Act, 1957" is marked N.A.. Is the copyright certificate even valid as he has not shown his intent during copyright registration. Can he use it for filing copyright infrigement case. Please provide a ruling if he cannot use the copyright certificate. Can he use it for protecting his product packaing without a NOC clearance from Trade Marks office. Can I continue selling the product with similar product package design. None of us have Trademark. Opposite party has applied for Trademark but not granted possibly due to generic place name in brand.
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Even if he doesn't have a copyright or a trademark certificate then too he can file a case against you if the trademark design or the logo or the packaging is similar.
If he has applied for it but was refused the refusal order should be shared in order to understand the reasons for refusal.
Moreover even if it isn't registered then too a case can be made out and filed in the civil court.
Dear Sir,
Copyright and trademark are different things and have different provisions and these attract cases under different provisions of law.
I need specific answer related to Section 45 of copyright act. Can anyone use a package wrapper design which was copyright without taking NOC clearance from TradeMarks office to initiate criminal(not civil) proceedings under section 51 and 63 (copyright act 1957). If your answer is yes, then what is the use of NOC clearance from TradeMarks office under section 45 of copyright act. Please give a related ruling/leading case. Please give a specific reply.
Trademark and copyright should be obtained. But that doesn't mean that a person cannot sue you if his copyright or trademark is not registered or is in the process of being registered.
S.45 uses the word MAY.
But it is advisable to become a registered owner of the copyright for various reasons as a registration establishes a public record and a motice to the whole world.
What he had done is immaterial, if the same is not maintainable then the authorities would not have entertained his complaint nor the court would accept his non-maintainable complaint which may not be legally valid in the given situation.
If you have not been restricted by an order of court to sell your product, you may proceed without bothering to his threats of false case
Section 51 of the Copyright Act specifies when a copyright is infringed. According to Section 51 of the Act, Copyright is deemed to be infringed if:
Section 55(1) of the copyright act, provides that the copyright holder is entitled to remedy by way of injunction. The injunction is the most effective remedy in case of copyright infringement.
However, there are certain exceptions to the copyright infringement i.e. in certain cases a person is not required to obtain the permission of the copyright holder to use his work. However, it is always advised to produce the original work and not to use someone’s copyrighted work without permission.
Dear Sir/Ma'am
Sec 45 of Copyright act is related to formalities to be undertaken on registration of a copyright. If the copyright of the company is already registered, that means that they have the right to file an infringement complaint. And it is also the case that registration of copyright is not mandatory as the registration is treated as mere recordal of a fact. The registration does not create or confer any new right and is not a prerequisite for initiating action against infringement.
Sir the provision of requirement of NOC clearance is only in regard to artistic work that can also be registered also as trademarks to check if there is already a trademark that exists and is similar to such copyright. Though on issuance of NOC the copyright owner can have copyright which is separate from the trade mark owners right to his trade mark.
Thank you
