Copyright Registration is no proof of User

In a recent Judgment dated 21.01.2019 passed by Hon'ble High Court of Delhi in Writ bearing W.P.(C) 7983/2012 titled as Khushi Ram Behari Lal Vs Jaswant Singh Balwant Singh , the Hon'ble Court has returned the finding that Copyright Registration is no proof of user. The case of the Respondent was rejected on the ground of its documents being suspicious in nature.

The said writ was filed by the Petitioner against refusal of its trademark application Train Brand Label under no. 609141 in class 30 in relation to rice by the Ld. Registrar of Trademark.

The petitioner claimed to be partnership firm trading as M/s Khushi Ram Behari Lal (Export Division) comprising of three partners which was established in the year 1978 and has been carrying on the business of processing, marketing and exporting of rice since then. The trademark TRAIN BRAND WITH DEVICE OF TRAIN was claimed to be used by the Petitioner since 1990 in relation to rice.

The Respondent filed Notice.Oposition claiming itself to be prior user and prior registered proprietor of its trademark and Copyright Train in relation to rice. The Petitioner also filed TM-16. learned Registrar of Trademark, vide its order dated 12.10.2006 dismissed the Form TM-16 dated 17.02.2006 filed by the petitioner and also allowed opposition of the respondent . Resultantly refused the application for registration of the subject matter trademark filed by the Petitioner for Train Brand Label under no. 609141 in Class 30.

Being aggrieved of the said order passed by the Ld.Registrar of Trademark, the Petitioner filed the Appeal before the IPAB, bearing No. OA/05/2007/TM/DEL. However the same was dismissed vide impugned order dated 18.5.2012 passed by the Ld. IPAB (Intellectual Property Appellate Board),even after observing Respondent's bills to be suspicious.

The Ld. IPAB also observed "that the petitioner / appellant have raised a number of other doubts about the credential of the opponents evidence which would lead one to believe that the impugned mark has been wilfully refused by the Assistant Registrar. But that misses the basic flaw in the applicant‟s case. Accordingly, it is observed by the Appellate Board that no matter how much he may canvas, the fact of the matter is the opponents are already the registered proprietor of another trade mark under no. 405933 in Class 30 in respect of rice since 1983." It is clear that the Ld.IPAB abserved Respondent,s documents being suspect, however dismissed the Appeal of the Petitioner mainly on the ground of its Registration, without appreciating that the Registration is no proof of user.

The Hon,ble High Court of Delhi observed as under "perusal of the impugned order that the learned Appellate Board has ignored the fact that the said registration of the respondent was only for the word "TRAIN" and the same was registered as proposed in the use. The learned Board and the Registrar ignored the fact that the respondent tried to prove the user by forged and fabricated documents and the petitioner had already filed rectification petition against the said registration. " Thus the Hon'ble High Court of Delhi rightly taken note of the forged documents filed by the Respondent.

Vide it's Judgment dated 21.09.2019, the Hon'ble High Court of Delhi set aside the order of the IPAB on the ground of inter-alia bills of the Respondent being suspicious in nature. In the Judgment, the Hon'ble High Court has also extracted the bills of the Respondent, where the logo of Respondent was appearing for rice, but the goods were shown as RUSK and SUGAR.

The Hon'ble High Court of Delhi also observed that copyright registration is no proof of user. The said observation is as under" On perusal of the documents on record, I have no hesitation to say that the learned Appellate Board has relied on the Copy Right Registration of respondent under No. A44877/84. The Copy Right Registration of the art work of "TRAIN" brand is extraneous for the purpose of proving the use subject Trade Mark".The Hon'ble High Court of Delhi further ordered the said trademark application TRAIN BRAND Label under no. 609141 in class 30 for registration.

Thus the case of the Respondent was rejected on two counts. One that copyright registration is no proof of user. Second that the Respondent tried to prove prior use by filing forged and fabricated documents.

AJAY AMITABH SUMAN,

ADVOCATE,

DELHI HIGH COURT

[IPR Lawyer & Poet] Delhi High Court, India Mobile:9990389539

[IPR Lawyer & Poet] Delhi High Court, India Mobile:9990389539