Section 50 of the Copyright Act, 1957 {Rectification of Register by Copyright Board} vests the Copyright Society with the power to Rectify the Register by ordering the inclusion of any entry wrongly omitted in the register and correction of any errors or defects in the register. The Section also empowers the Board to order to expunge any entry wrongly made or remaining on its register. Exercising such a power accorded under the section is the case of Wings Pharmaceuticals Pvt. Ltd. v. Vest Pharmaceuticals Pvt. Ltd. [2009(39) PTC 385 (CB)]
An application had been filed under S. 50 of the Copyright Act, 1957 for expunction of an application before the Copyright Board with respect to Wings Pharmaceuticals' registration for its artistic work "DISCLOWIN PLUS". They claimed to learn of a copyright registration in favour of Vest Pharmaceuticals in a written statement filed by Vest in respect of a civil suit filed against them by Wings Pharmaceuticals in respect of a deceptively similar work. The work was claimed to be a violation of Sections 19 {Mode of Assignment} and 45(1) {Entries in Register of Copyrights} and Rule 16 in addition to Section 68 {Penalty for making false statements for the purpose of deceiving or influencing any authority or officer} of the Copyright Act. A remedy under Section 72 {Appeals against orders of Registrar of Copyrights and Copyright Board} was also prayed which was clarified to be an erroneous inclusion.
In respect of filling the written statement, the Copyright Board noted the existence of some confusion since records were unavailable at the Registry. Upon directions to file the same, Vest Pharma failed to do so. A letter was submitted by Wings Pharmaceuticals wherein the contentions were rebutted and denied by Vest as also an assertion that the impugned work was the original work of their Director and that no statutory violation in obtaining the registration had been committed.
Wings Pharmaceuticals brought forth a description pertaining to its trademark and copyright registration. The impugned registration was also closely examined whereby, the applicant's name depicted M/s Vest Pharma Pvt. Ltd. and under the name of the author, the name of the Director was endorsed. Wings Pharmaceuticals raised an objection that an assignment ought to have been made. This was not rebutted or clarified in respect of which the Board held that no assignment was obtained. On this ground it was opined that the registration should not have been entered and hence must fail. Further it was pointed out that while Vest Pharma claimed their first year of use to be 2001 while Wings Pharmaceuticals' trademark application dated back to 2000. Issues of deceptive similarity were also raised.
The Board opined that the main burden of Wings Pharmaceuticals in arguing for lack of originality of the impugned work, product line being same and deceptive similarity between the works was stated to have been prima facie established. Further, the Board held that it had been established that Wings Pharmaceuticals' works were a model or guide for Vest and that substantial copying had taken place. The Burden of rebuttal was said to lie on Vest Pharma, who had failed to avail of it.
The Board also recognized that the nature of the Company and its Director whose name was endorsed as the author were dissimilar and that no commonality in their position could be assumed, being independent of each other' identity. In view of Section 17 {First owner of Copyright} read with Section 2(d) {Interpretation of "author"} of the Act it was inferred that the Director was the owner of the copyright. Further, it was found that there was nothing on record to conclude that the work was executed under a contract of service, nor was an assignment on record as under Section 19 of the Act. The Board opined that the ownership rights were acquired unlawfully and ordered to expunge the work from the Register.
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