' This appeal under section 77 of the Copy Right Ordinance No,XXXIV 1962, calls in question, the order dated 29-11-1999 of the learned Copy Right Board, Karachi passed on the application of respondent No, 1.
2. Respondent No,1 sought rectification of the Copy Right Register by claiming deletion of Entry No,6541-Copr. In favourv of the petitioner recorded therein on 4-1-1998 or in the alternative to expunge therefrom the artistic work/label design of 'Aliens Cordial' (a homeopathic medicine). The case of respondent No,1 was that Rio Chemical Company Inc USA was the original creator, adopter, user, publisher and proprietor of the aforesaid artistic work/label design. On 24-12-1966 the said company had filed an application for registration of the said trade mark in the trade mark registry of Pakistan. It was, accordingly, registered. The said respondent also claimed an assignment in his favour and subsequent registration of the trade mark with the disputed artistic work. It was further averred that the respondents to the said application namely Ashiq Hussain and two others had got registration of the identical artistic work titled Alteris Cordial' under No,6541- Copr by misrepresentation and fraud.
3. This application was resisted on a number of grounds. The case of the respondents before the Copy Right Board was that they were the original and genuine creators of the disputed artistic work/label design since, 1976 and Copy Right Registration Certificate had duly been issued in their favour. The deed of assignment in favour of respondent No,1 was assailed as fictitious and forged.
4. This application was heard on 2nd November, 1999 and the decision rendered on 29-11-1999. The learned Copy Right Board reached the conclusion that respondent No,1 had failed to prove a valid assignment as the original was not produced. It was, however, found that the original owner, creator and user of the disputed artistic work was the Rio Chemical Company, Inc. U.S.A. And respondent No,1 herein had failed to show as to how, it came to possess the rights to use the disputed artistic work/label design etc. It was also observed that none of the parties had the right to use the disputed artistic work/label design and that none of the parties possessed any manufacturing licence from the concerned authorities. Accordingly, Entry No,6541-Copr appearing in the register of Copy Rights was ordered to be expunged.
5. It may be noted that this appeal has been filed on behalf of Rio Chemical Company registered through its partner Dr. Ishfaq Hussain. It is a registered firm and according to the deed of partnership placed on record, it was constituted on 25-4-1995.
6. The learned counsel for the appellant contends that after the Copy Right Board had found that assignment of the trade mark, with the disputed artistic work/label design in favour of respondent No,1 was not established, it could not be said to be a "person aggrieved" to maintain petition before the learned Board because under section 41 of the Copy Right Ordinance, 1962 appeal is maintainable only at the instance of a "person aggrieved". It was further contended that long before the alleged assignment in favour of respondent No,1, which otherwise was not established, the appellant had been using the aforesaid artistic work and even on that score no interference was called for by the Copy Right Board. He referred to the certificate of registration dated 24-12- 1966 according to which:-- "Registration of Trade shall give no right to the exclusive use of word Alteris Cordial and device of the bottle except substantially as shown in the presentation on the form of the application."
7. On the other hand the learned counsel for respondent No,1 submits that this Court has no territorial jurisdiction because in accordance with the provisions of section 77 of the Copy Right Ordinance, 1962 an appeal lies to the High Court within whose jurisdiction the appellant actually and voluntarily resides or caries on business or personally works for gain. According to him the appellant firm was registered at Karachi with the Registrar of firms. The National Tax number certificate was issued at Karachi showing their business premises at Karachi. The appellant was registered as an exporter at Karachi and was carrying on business at Karachi. Therefore the appeal lay only before the learned Sindh High Court at Karachi. It was next contended that period of limitation prescribed by section 77 of the Copy Right Ordinance, 1962 was three months from the date of the decision which was rendered on 29-11-1999, while this appeal was filed on 20-4-2000 which is beyond the prescribed period of three months. He maintains that although the judgment had been reserved yet vide letter dated 28-12-1999, Mr. Ashiq Hussain, partner of the appellant, was duly informed. Copy of the order was applied fQr on 17-1-2000 which was supplied on 20-1-2000 and even if, allowance for the time for 17-1-2000 to 20-1-2000 was given, the appeal was still barred by time.
8. It was .Next contended that the assignment in favour of respondent No,1 was duly registered on 5-6-1993, it had also obtained trade mark registration certificate on 28-6-1997, which was conceded in para.13 of the reply submitted to the application of respondent No, 1 . The Copy Right Board could not go behind either the assignment or the trade mark registration in favour of respondent No,l. It was further contended that in view of the facts proved on the record the Copy Right Register has rightly been rectified.
9. Exercising the right of rebuttal the learned counsel for the appellant contended that although the firm was registered at Karachi, yet according to the certificate of Registrar of the firms, the principal place of business was Karachi, while the other place of business was Kamalia District, Toba Tek Singh, Punjab and therefore, the appellant was carrying on business at both the places.
10. As to the question of limitation his contention is that letter dated 28-12-1999 addressed to the appellant did not even specify the date of decision of the Copy Right Board and from the date of supply of the certified copy on 20-1-2000, this appeal filed on 20-4-2000 was within time.
11. The submissions made by the learned counsel for the parties have been considered. The dispute between the parties is about the label design of "Alteris Cordial" and other minute details of the packing. The learned Copy Right Board has found that the label design of the appellant as well as of respondent No,1 is exactly the same in all minute details. It has also been found by the learned Copy Right Board that it was not disputed that the original creator and user of the disputed artistic work was Rio Chemical Company Inc. U.S.A. The finding of the learned Copy Right Board that the appellant was not able to produce any evidence to show that it was the creator of the disputed artistic work was not assailed by the learned counsel for the appellant. His emphasis has been that respondent No,1 was not a "person aggrieved" to maintain the petition before the learned Board and by directing rectification of the Copy Right Register, the Copy Right Board acted suo motu for which the said Board had no jurisdiction.
12. The contention of the learned counsel for the appellant that respondent No,1 was not a person aggrieved, has no merit. The trade mark was first registered in favotir of Rio Chemical Company Inc. U.S.A. On 24-12-1966 under which the said company had exclusive right to use the word "Alteris Cordial" and device of the bottle as shown in the presentation on the form of application. It is not disputed that it was registered on 24-12-1966 in favour of Rio Chemical Company Inc. U.S.A. The said trade mark was assigned in favour of respondent No,1 which was registered on 5-6-1993. By virtue of section 23 read with section 35 of the Trade Mark Act, registration of a trade mark, is prima facie evidence of the validity of the original registration of the trade mark and all subsequent assignments and transmissions thereof. Therefore, I am of the view that the learned Copy Right Board could not have gone behind the assignment in favour of respondent No,1 duly registered under the provisions of the Trade Marks Act. The question whether the assignment was valid could only be gone into in the proceedings under the Trade Marks Act but could not have been collaterally impeached. Therefore, on this score alone respondent No,1 was a "person aggrieved".
The learned Copy Right Board also omitted to note that in para.13 of the counter-statement (reply to the application of respondent No,1), the position taken was that on the application dated 5-6- 1993 the respondent had got registration of the disputed label design and a certificate was issued under No,121513 class-5 on 28-6-1997. The registration certificate in favour of the appellant was, in any case, issued subsequently, i.e. On 4-1-1998. Therefore, even on this score, as well respondent No,1 was a "person aggrieved" to maintain an application under section 41 of the Copy Right Ordinance, I may clarify here that these observations are being made for a limited purpose i.e. Whether respondent No,1 was or was not an aggrieved person. Registration of the trade mark with the disputed label design or its assignment in favour of respondent No,1 is not being adjudicated in this appeal because it is beyond the scope of this appeal.
13. The learned Copy Right Board observed that none of the parties had a manufacturing licence.
They expressed their regret against the elements in the country who unauthorizely copy the names, artistic work, design and colour scheme of foreign made products and thus, common people purchasing such spurious fake and false products are misled. They also suggested legislative measures to curb this tendency. A copy of the impugned order was directed to be sent to all functionaries to consider advisability of taking necessary steps suggested by the said Copy Right 'Board. This direction shall remain unaffected by this judgment.
14. As far as the objection of the learned counsel for respondent No,1 as to the territorial jurisdiction of this Court is concerned, it has no merit because the certificate of registration of appellant firm clearly indicates two places of its business i.e. Karachi and Kamalia District, Toba Tek Singh. The place of business in Punjab is within the territorial jurisdiction of this Court. As far as the question of limitation is concerned, from the date of supply of the copy of the order, this appeal has been filed within three months. However, in view of the findings recorded in the earlier part of the judgment that no exception could be taken to the impugned order of the learned Copy Right Board examination of this question is not considered necessary.
15. For what has been stated above I find no merit in this appeal, which is, accordingly, dismissed.