1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. APPEAL AGAINST ORDER NO.106 OF 2007 (M/S. GHANSHYAM PERFUMERY & CO. Vs M/S. SHRI SAWARAM AGARBATTI BHANDAR) _____________________________________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders ______________________________________________________________________________________________ CORAM : R.C.CHAVAN, J. DATED : JULY 29, 2008. 1. This appeal is directed against order passed by Copy Right Board on 18th June, 2007, whereby the Board ordered that registration of copy right in favour of the appellant shall be expunged from the register. 2. It is appellant's case that the appellant applied for a copy right in respect of the work of art associated with sale of incense sticks. His application was accompanied by requisite certificate from the Registrar of Trade Marks as required under the proviso to Sub-Section (1) of Section 45 of the Copy Right Act. The Registrar allowed the application and registered the work of art associated with Big Sona Agarbatti vide Registration No.A-73121/2005. 2 3. The respondent, also manufactures essence sticks and has a copy right registered, which is similar to that of the appellant and which, according to the respondent, was granted to him prior to grant of copy right to the appellant. The respondent has filed an application before the Copy Right Board under Section 50 of the Copy Right Act. Upon hearing the parties the Copy Right Board has passed the impugned order observing that the appellant had received notice dated 7th February, 2004 from the respondent asking the appellant to desist from using the offending labels. The appellant had, in fact, lodged caveat on 24.06.2004 in the Court of Civil Judge Senior Division, Nagpur, apprehending action from the respondent. Rule 16, sub-rule (3) of the Copy Right Rules requires that the person applying for registration under Section 45 shall give notice to every person who claims or has any interest in the subject matter of the copy right or disputes the rights of the applicant to it. According to the Board, since the appellant was aware about the dispute raised by the respondent and had even lodged caveat, the appellant ought to have given notice of this application to the respondent. The Board, 3 therefore, cancelled the registration and ordered it to be expunged from the register. 4. I have heard Shri D.V.Chauhan learned counsel for the appellant and Shri R.S. Parsodkar, learned counsel for the respondent. 5. Since the appellant had already received notice from the respondent indicating that the respondent was aggrieved by the appellant's using the said work of art and had in fact, filed caveat before the Civil Court, it is obvious that the appellant knew that the respondent was a person interested and therefore, entitled to notice under Section 16(3) of the Copy Right Rules. Therefore, no fault can be found with the conclusions drawn by the Board and it has to be held that the copy right of the appellant was rightly cancelled and expunged by the Board. 6. The learned counsel for the appellant, however, drew my attention to judgment of the Division Bench of High Court of Patna, in Lal Babu Priyadarshi Vs. Badshah Industries, 4 reported at 2002(2) RAJ 62 (Pat), where similar issue in relation to copy right, in respect of the labels to incense sticks had arisen. The Bench observed that while cancellation of the registration was proper, the Board ought to have remanded the matter back to the Registrar of Copy Right for an inquiry contemplated under Clause (2) of Section 45 of the Copy Right Act. The learned counsel for the respondent submitted that cancellation of registration does not prevent the appellant from applying afresh for grant of copy right. While the appellant may, undoubtedly, be entitled to apply for a copy right, his entitlement to use the said work of art would have to be decided afresh since, what the Board has found is that the Registrar could not have decided the application of the appellant in the absence of notice to the respondent. It is not that after the adjudication the Board has found that the appellant is not entitled to use of the said copy right in respect of the said work of art. Therefore, ordinarily when the question is decided on the basis of requirement of giving hearing to the aggrieved party, the matter ought to have relegated back to the stage of hearing. 5 7. In view of this, the appeal would have to be partly allowed. The cancellation of the copy right mark by the Board would have to be upheld. However, the order of the Board would be modified remanding the matter to the Registrar, directing the Registrar to decide the application afresh after notice to the respondent as required under Rule 16(3) of the Copy Right Rules. Needless to mention that since copy right has been cancelled and expunged from the register the appellant is not entitled to use it till registration is granted by the Registrar. JUDGE RR.