1. ' The parties have filed applications under Order 39, rules 1 and 2 under Order 39, rule 4 and Order 7, rule 11, C.P.C., all the three applications were heard. Counter-affidavits have been filed against the applications.
2. ' Briefly the facts of the case are that the plaintiff claims copyright books under the Trade Mark NELSON. The plaintiff has alleged their these books which are primarily used by schools are reproduced printed, distributed, sold by the defendants jointly and severally. They have violated the Copyright Act as well as the Trade Marks Act. The plaintiffs have also claimed damages from the defendants.
3. ' The defendants in their reply to the allegation have contended that they are not covered by the Copyright Act, and have referred to section 10(2)(a) of the. Copyright Act which according to them exempts educational material from the ambit of Copyright Laws. In this connection they have also relied on the various other sections of the Act.
4. ' In order to dispose of the applications I shall deal with them separately but before I do so it would be appropriate to mention that by order dated 29-5-2000 the restraining order was passed against the defendant from printing, publishing, marketing, selling, or using plaintiff s trade mark/name/title "NELSON" in or upon any textbook or passing off in printed or published textbooks as they are plaintiffs textbook/books marked as Annexures 'A-1' to 'A-22'. This would apply to any other textbook containing the same text, picture or arrangement as shown in the Annexures 'A-1' to 'A-22':
(1) C.M.A. No,3761 of 2000. This is an injunction application filed by the plaintiffs. They have sought an injunction and a restraining order against the defendant. In this application they have alleged that they are the owners, assignees/proprietors to use, publish and sell and enjoy exclusive right in respect of various publications and titles of books distributed, sold, under the mark NELSON. All the NELSON publication described in detail in Annexures 35 to the plaint vests with the plaintiffs Nos,1 and 2.
5. ' According to the plaintiff No,2 he is carrying on the work on behalf of the plaintiff No,1 in Pakistan.
6. ' In support of their contention that they are exclusive owners and users the plaintiffs have in support of their application submitted a detailed affidavit where figures of sale publicity in pound sterling and Rupees have been shown. According to the plaintiffs they without even enjoy an exclusive website on the Internet on behalf of the plaintiff No,1 and the predecessor-in-interest in respect of the sale and distribution including publication of the books under title NELSON. According to them besides contravening the Copyright Act the defendants have also violated the provisions of Trade Marks Act as it also amounts to passing off since both the title NELSON and the logos are also used by the defendants.
7. ' The defendants on the other hand have claimed that the defendants under section 10(2)-A as well as section 80 of the Copyright Act read with section 6 of the National Book Foundation Act have the right to reproduce education materials and in this respect the Copyright Act and its provisions are not applicable to the defendants. On the other hand they have raised numerous legal objections which inter alia challenge the right of the plaintiff No,1 to sue in connection with the books/publications under the title NELSON as according to them the plaintiff No,1 are not the owners as prescribed under the Law of Copyright. They have further stated that if the plaintiff has no right to sue then the question of granting injunction does not arise. In fact both in the counter-affidavit and in the oral submission an attempt has been made by the defendants to press legal issues and set the plaint dismissed on that ground.
8. ' On the other hand the plaintiffs also have raised legal issues and have also challenged the competence of the defendant No,1 to contest this matter and also whether the proper and necessary and competent person has signed and verified the document.
9. ' To my mind both sides have tried to embroil themselves on a higher technical battle. They have avoided to answer the actual issue at this stage of injunction. It would not be out of context to state herein that I have visually examined the books published by the plaintiffs and that published by the defendants. From the bare and cursory appraisal it seems that the defendant No,1 has obtained the books and incorporated on the opening page their own logo and the words "Reproduced by National Book Foundation". Similarly at the back page in the logo and the name of National Book Foundation has been printed with the name of various cities in Pakistan, which I presume indicates where the National Book Foundation is available. At this juncture disposing the injunction application is my concern. I have to see whether indeed a case has been made out for grant of an injunction. What I have also noted is that in case an injunction is not granted then who shall suffer.
10. Prima facie the books are clearly used by the National Book Foundation and after incorporating therein their name as mentioned above they are sold. In spite of my repeated requests to the counsel appearing on behalf of the defendants whether they have any documents which could be construed as permission by the original owners to National Book Foundation or the Federal Government to incorporate the name on the books and sell them in the market they have failed to produce the same. They have repeatedly relied on section 10(2-A) of the Copyright Act. It would be worthwhile to reproduce the relevant Sections of the Copyright Act which the defendants rely on: section 10(2):
(2) Copyright shall not subsist in any work specified in subsection (1), other than a work to which the provisions of section 53 or section 54 apply, unless:--
(I) In the case of published work, the work is first published in Pakistan, or where the work is first published outside Pakistan, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of Pakistan or domiciled in Pakistan.
(II) In the case of an unpublished work other than an architectural work of art, the author is at the date of the making of the work a citizen of Pakistan or domiciled in Pakistan.
(III) In the case of an architectural work is located in Pakistan.
11. (2-A) Copyright shall not subsist in any work referred to in subsection (2) as respects its reprint, translation, adaptation or publication, by or under the authority of the Federal Government as textbook for the purposes of teaching, study or research in educational institutions.
12. ' It is apparent that section 10(2-A) cannot be read in isolation, the entire section 10(2) has to be read. Even it was read in isolation and the argument of the defendant was to be accepted that the Government has right to reprint translation, adaptation or publication which is used for the purpose of teaching, studying or research in educational institution and on such matters Copyright shall not substances is of MISNOMA. If the line of arguments of the defendant was to be accepted then the entire Copyright Ordinance may as well declared as redundant law.
13. ' Suffice it to say that looking at the law and the books are reproduced and in the business of any authority available with the Government a clear-cut case of granting of injunction has been made out accordingly C.M.A. No,3761 of 2000 is granted.
(2) C.M.A. No,4092 of .2000. This is an application under Order 39, rule 4, C.P.C. This application has been made to re-call the order dated 29-5-2000 passed in C.M.A. No,3761 of 2000. Since I have already passed detailed order as mentioned above therefore, there is no necessity of passing any order on this application and this application is accordingly dismissed.
(3) ' C.M.A. No,4093 of 2000. This is an application under Order 7, rule 11, C.P.C. By this application the defendants seek rejection for the plaint. The body of the application does not show on what ground the rejection is being sought. However, in the affidavit filed with the application, it is claimed by the defendants that the plaintiffs have no right to sue. They have also challenged the plaintiffs' claim to be owner of the Copyright. They have inter alia taken various pleas through which they have claimed or tried to claim that the plaintiff No,1 has sold the copyright or trade mark or title to a Dutch Company. They have challenged the assignment agreement. They have also challenged that no licence has been given to the plaintiff No,1 by a Dutch Company to use the work as well as Trade Mark NELSON. In fact they have based their entire defence on legal or technical objections with the overall objective to get the suit dismissed on that ground.
14. ' It is a well-settled law that Order 7, rule 11, C.P.C. Can be entertained and looked at only after the plaint has been read. The rejection of the plaint has to be based upon the plain reading of the plaint. It has to be apparent on the face of it. The defence taken in the written statement shall not be construed a basis for rejection of the plaint. In cases where in order to come to a just and fair decision it is necessary to investigate the matter, then evidence has to be recorded. In the present case the defendants have challenged the plaintiffs right to sue and taken various pleas in their affidavit. On the other hand counter-affidavits have been filed by the plaintiff and a statement has also been filed where certain agreements and other documents have been brought on record.
15. Through these agreements an attempt has been made to reply to the objection taken by the defendant. It is quite evident from the lengthy documents that have been brought forward that it would be not easy to resolve this issue of rejection of the plaint primarily through the bare reading of the plaint. A fair opportunity shall have to be given to both sides to record their evidence in favour and against their proposition so that the matter may be resolved. Under the circumstances the defendants would be well within their rights to frame legal issues and get evidence recorded.
16. The application accordingly is disposed of with the above observations.