ALI NAWAZ CHOWHAN, J.--- This appeal is against the order dated 29.1.03 passed by the Copyright Board constituted under the Copyright Ordinance, 1962, in a rectification application No.2 of 2001.
Whereby the entry in favour of the appellant was expunged from the Register of copyrights.
2. Giving the reasons for doing so., the learned Bench was of the following view:- "We have given due consideration to their submission and have carefully examined the documentary evidence produced by them on the record. We find that notwithstanding its claim of being in the market since 1989 and 1990 by applicant and respondent respectively none of them has produced any documentary evidence of their existence in the market despite huge amount of sales have been shown by them viz from Rs.23 lac to 75 facs of rupees yearly by the applicant from 1989 to 2000 and Rs.6,17,6000 to Rs.46,00,000 yearly from 1990 to 2000 by the respondent. Even copies of the income tax returns and assessment orders of these years have not been enclosed which could be the irrefutable and trustworthy source of the sales of their products."
"Resolving the question, on this criteria we find that the sale figures supplied by the applicant Mr. Abdul Razzaq in his paragraph 9 of his affidavit starts from the year 1989 while the sale figures provided by respondent in paragraph 6 of the affidavit start from 1990. It shows that the applicants were in the market since 1989 with substantial sales of Rs. 24 lacs when the respondent had no business activity in the relevant field at the that time. Even otherwise a mere look at the year-wise sales of applicant and respondent will show that there is vast difference will show that there is vast difference in the volume of business conducted by applicant and the respondent. Applicant's sales each year were nearly double the sales each year were nearly figures and other factors mentioned above lead to inescapable conclusion that the applicant was first in the market with its products and respondent followed it."
3. The matter pertains to the copyright of a design having a peculiar colour and scheme. The composite label having a distinctive design and get-up with peculiar colour scheme alongwith the word "BAZAUQ TAVEERA" which was being used as a composite label for a fabric.
4. According to the appellant, he had applied for the registration of the trademark with the Registrar. This trademark was advertised in the Trade Mark General in November, 1998. The appellant also applied for the registration of the label with the Registrar of Copyrights and succeeded in getting it registered. It was further stated that the trademark and the label were being used by the appellant even before the time of its registration.
5. Respondent No1 also find an application with the Registrar of Copyrights presenting a label which he wanted to use against his product. This application was refused by the Registrar on the ground that the label of the appellant already stood registered. The latter order of the Registrar was passed on 27.11.2000.
6. It was next averred that instead of filling an appeal against the order of 27.11.2000, the respondent chose to file a rectification application before the Copyright Board for expunging of registration registered in his favour and resultantly after hearing both sides the Board passed an order in favour of the respondent on the basis of the opinion formed by it, re-produced above.
7. It was alleged before this Court that respondent No. 1 was not an interested party and could not have moved the rectification application. That having not availed the right of appeal as provided under Section 76 of the Copyright Ordinance, he took the indirect way of bringing he rectification petition. It was said that the Board which enjoined the power of receiving evidence and summoning witnesses in accordance with the CPC. Failed to allow the appellant to adduce additional evidence for establishing the contradicted facts asserted by the respondent in his affidavit and relied upon by the Board.
8. Learned counsel for the other side stated that the appellant was a partner/employee of the respondent and surreptitiously he made the application for registration of his copyright although the design, for which registration was sought, was being used much earjier by the respondent.
9. The first question will be with respect to the scope of rectification at the end of the Board. Section 41 (2) read as follows:- "Correction of entries in the Registrar of Copyrights and indexes, etc. (2) The board, on application of the Registrar or of any person aggrieved, may order the rectification of the register of Copyrights by---
(a) the making of any entry wrongly omitted to be made in the register, or
(b) the expunging of any entry wrongly made in or remaining on, the Register, or
(c) the correction of any error or defect in the Register.
10 It appears that the Board was acting under Section 41(2)(b) of the Copyright Ordinance, 1962, which is more or less a revisional power and not a power same as in appeals.
11. The next question is whether the entry at the end of the Registrar was wrongly made calling for a rectification?
12. While going through the impugned order, some excerpts from which have been re-produced above, one finds that the Board itself has observed that no document had been produced by either side with respect to the claim about their existence and use of the labels since 1989 or 1990. It was also observed that even income tax returns were not filed.
13. Finding that the record was destitute of these proper documents, the Board then decided to rely on the affidavits and while relying on the affidavit of the respondent passed the expunging order without there being any cross-examination for ascertaining the truth. This had happened despite the fact that an application asking for permission to adduce additional evidence of the appellant's side was refused.
14. Reliance on affidavit was safe under the circumstances and the respondent having lost his case before the Registrar on basis of material which he produced, their case deserved remand to the Registrar for allowing parties to adduce evidence or their existence- as per their claims and then for deciding afresh whether the entry under reference had been correctly incorporated or not? By not doing so, the Board has in fact the allowed-circumvention of the provision of appeal. Even otherwise the purpose of rectification being limited the findings whatever were to be based on material gathered by the Registrar Copyrights. The Board even forgot to exercise its powers under.
Section 78 of the Copyright Ordinance, 1962, for satisfying itself whether the claims of both sides with respect to the age of their business were correct.
15. The order of the Board being exceptional and not based on sound judgment, sets it aside and remands the case to the Registrar under the Copyright Ordinance, 1962, there the parties may establish their claims in accordance with law by adducing proper evidence.
16. Parties are directed to appear before the Registrar Copyrights on the 18th of March, 2004, and the Registrar Copyrights is directed to dispose of the matter in the next two months thereafter. He shall be submitting a copy of his order to this Court through he Deputy Registrar (Judicial) of this Court by the 10th of May, 2004. case remanded.