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Judgment
Srinivasan, J.—These applications are filed by the plaintiff we has prayed for the reliefs of injunction restraining the defendants from
committing infringement of the Copyright and trademark and from passing of its goods as that of the plaintiff besides a description to the defendant
to render accounts of the profits earned by it and to surrender to the plaintiff all the cartons, labels packets and any other printed matters containing
or consisting of the offending artistic work of trademark together with blocks used for purposes of printing the same for destruction. The case of
the plaintiff as set out in the plaint is as follows :-- The plaintiff carries on business as manufacturers, marketers and exporters of Tea and other
consumer goods on a large scale with an annual sales turnover of about Rs.400 crores. The plaintiff business having been established in the year
1912, has gained very valuable reputation and goodwill especially in the tea trade. One of the popular brands of tea which the plain tiff sells is
''Super Dust Tea'', which is be in a sold since 1968 in various sizes of packets. The marketing of the tea with the banner ''Super Dust Tea'' was
being done under four registered trademarks and two other trademarks for which applications have been filed for registration. The essential
features of the series of trademarks are the unique colour combination of green background, the word''s ''Super Dust Tea'' in white and the floral
get up in different shades of red and pink. Slight variations in the get up have been designed to suit the size of the packet carrying different
quantities of tea. In January, 1987, the plaintiff introduced a yellow circle in which the words ''Super Dust Tea'' are printed is red and green. The
trademark of the plaintiff has acquired considerable reputation and goodwill in the market. The plaintiff has spent about 1. 6 crores of rupees one
publicity and advertisements. The essential features of the artistic creation are :
''Brooke Bond''
(i) The words ''Super Dust Tea'' written in red and green letters in a distinctive manner in yellow circular background ;
(ii) Green background of the entire label ;
(iii) A distinctive colour combination of green, white, Pink, red, etc., and
(iv) Floral get-up consisting of two roses. One red and another pink with stems and few other flowers in a row.
Since three months prior to the filing of the suit, the plaintiff noticed in markets in the region of Nagpur and Visakhapatnam tea packets marketed
by the defendant in cartons having the substantial features of the plaintiff''s carton. The defendant''s carton is deceptively similar to the plaintiff''s
carton and reproduces substantially all the essential features of the plaintiff''s artistic work. The plaintiff''s ''Super Dust'' in red and ''Tea'' in green
are reproduced by the defendant''s ''Super Star'' in red and ''Tea'' in green. Just as the plaintiffs banner is encircled in a yellow circle, the
defendant''s banner is surrounded by a yellow star of similar dimension. Below the banner, the plaintiff''s flowers in different shades of red with
green leaves are copies by the defendant. The plaintiff''s yellow piping on the left had top with the word ''New'' in red is reproduced by the
defendant with the similar piping containing in red letter ''Fresh Assam Tea''. The plaintiff''s colour scheme of green background and employing
yellow, pink and green for its artistic work have been copied. Above all, the concept of flowers and leaves associated with tea, has been captured
by the defendant. The defendant has adopted the impugned label with the sole view of drawing upon the immense reputation and goodwill acquired
by the plaintiff in respect of its tea sold in packets containing its wrapper used since 1968. The sale of tea packet with the impugned label has given
rise simultaneously to three causes of action, infringement of plaintiff''s registered trademark, passing off and infringement of the plaintiff''s copyright.
The suit is based on all the three causes of action. The plaintiff having one of its main branch officers at Madras accounting for nearly 35 per cent of
the sales turnover in India is entitled to file the suit in this Court. On the above averments, the plaintiff prayed for the reliefs already referred to.
Along with the suit, the plaintiff filed four applications. Application No.502 of 1989 is for an interim injunction restraining the defendant from
committing any infringement of the copyright of the plaintiff in the artistic work filed as document Nos.1 and 2 along with the plaint till the disposal
of the suit. Application No. 503 of 1989 is for an injunction restraining the defendants from infringing the plaintiff''s registered trademark Nos
30118 and 250152 in Cl.30 filed as document Nos.3 and 4 till the disposal of the suit. Appln. No. 504 of 1989 is for an injunction restraining the
defendant from passing off its goods as that of the plaintiff using the impugned label. Application No. 505 of 1989 is under Cl.14 of the Letters
Patent for leave to combine the causes of action for infringement of trademark and for passing of along with this suit for infringement of copyright.
After notice the defendant entered appearance and filed counter affidavit. Just as the affidavit filed by the plaintiff in support of the four
applications is one, the defendant''s counter affidavit is also common The plea raised by the defendant runs thus : This Court has no jurisdiction
since the defendant company is situated and carrying on business at Raipur. The defendant has not sold even a single packet within the jurisdiction
of this Court and the defendant''s sales are mostly confined to Madhya Pradesh only. Even the allegation in paragraph 11 of the plaint that the
plaintiff has been noticing in markets in the, regions of Nagpur and Visakhapatnam, tea packets marketed by the defendants would disentitle it to
file the suit in this Court. It is not as if the plaintiff has no branch office in the places where the defendant''s products are said to have been seen
being sold or that there are no courts in the said places. It is also false to state that the products were seen in the market at Visakhapatnam. The
defendant has applied for registration of its trademark to the Trademarks Registry at Bombay on 8th January, 1988 and the number of the
application is 483987. The product in question is an excisable commodity. For moving any quantity of the product, even samples from the factory
of the defendant excise records will have to be maintained under the relevant rules and such records maintained by the defendant would show that
the sales of the defendant''s products are confined to Madhya Pradesh and Orissa and that nothing has been sold to any person within the
jurisdiction of this Court. No notice was issued by the plaintiff prior to the institution of the suit to the defendant. A few sample bills are filed along
with the counter affidavit to prove that the sales are confined to Madhya Pradesh. The defendant has been carrying on business of manufacturing
and selling Balaji Super Star Tea from 1-4-1988. The photo copy of the first affidavit and referred as Annexure A. Even before commencing the
sale, the defendant conceived the mark in question on 5-2-1988 and the invoice for the labels panted is filed as Annexure B. The sales turnover of
the defendant''s products are furnished in Annexure ''C''. The defendant has been openly advertising its trademarks in various newspapers and
magazines, photo copies of which are filed as Annexure D. The marks of the defendant are totally dissimilar and there has not been a single
instance of confusion from 1-4-1985 till date. The colour scheme adopted by the defendant is common to tea trade and the same colour scheme is
being used by various tea manufacturers. Any purchaser, literate or illiterate, would only ask for Brooke Bond Tea and there cannot be any
confusion between the plaintiff''s product and the defendant''s product and the defendant''s product in any view of the matter. The plaintiff has no
exclusive registration for ''Super Dust'' or ''Tea''. It would be a great injustice that the plaintiff should drag the defendant ail the way from Madhya
Pradesh to this Court solely on the ground that the plaintiff has a branch office at Madras. On the ground of balance of convenience, the plaint
should be returned. The action has been initiated with ulterior motives and it as a sheer abuse of process of Court. Hence, the applications are not
maintainable in law and should be dismissed.
Four questions arise for consideration:
(1) Whether this Court has jurisdiction to entertain the suit ?
(2) Whether leave should be granted to combine the three causes of action in this suit ?
(3) Whether the plaintiff is entitled to an order of interim injunction on ground of infringement of its copyright ?
(4) Whether the plaintiff is entitled to injunction on the basis of infringement of trademark and passing off ?
The first question is very easily answerable. These is no doubt that this Court has got jurisdiction to entertain this suit in view of the provisions of
S.62(2) of the Copyright Act. The plaintiff has made an allegation in the plaint its copyright has been infringed by the defendant and a prayer for
injunction restraining the defendant from committing such infringement is made in plaint. Hence, the suit is one falling under Chap. XII of the
Copyright Act, 1957. S.62 (1) of the Act provides that every suit arising under the said Chapter in respect of the infringement of copyright shall be
instituted in the District Court having jurisdiction. Sub Cl.(2) of S. 62 of the Act explains that for the purpose of sub-S.(1), a ''District Court having
jurisdiction'' shall include a District Court within the local limits of whose jurisdiction at the time of the institution of the suit, the person instituting the
suit actually and voluntarily resides or carries on business or personally works for gain. It is not in dispute that the plaintiff carries on business within
the jurisdiction of this Court at the time of the institution of this suit. In so far as the City of Madras is concerned, this Court is the ''District Court
having jurisdiction'' within the meaning of S.62(1) of the Act. (Vide the The Daily Calendar Supplying Bureau, Sivakasi Vs. The United Concern,
Hence, the question is answered in favour of the plaintiff.
The second question relates to Application No. 505 of 1989, which has been filed under Cl. 14 or the Letters Patent. The said Clause is in the
following terms:--
And we do further ordain that where plaintiff has several causes of action against defendant, such causes of action not being for land or other
immovable property, and the said High Court shall have original jurisdiction in respect of one of such causes of action, it shall be lawful for the said
High Court to Call on the defendant to show Cause why the several causes of action should not be joined together in one suit, and to make such
order for trial of the same as the said High Court shall deem fit.
Neither counsel cited any authority arising under Cl.14 of the Letters Patent. While learned counsel for the plaintiff placed reliance on the
judgment in Glaxo Orthopedic U.K. Ltd. Vs. Samrat Pharma, learned counsel for the defendant submitted that the plaintiff''s instituting the suit in
this Court is an abuse of process with a view to prevent the defendant from effectively defending the action. The contention of learned counsel for
the defendant is that the plaintiff which is admittedly a large concern with branches all over India, could have easily instituted a suit at the place
where the defendant is alleged to have committed infringement of copyright and the choice of this Court, which is situated far away from the
defendant''s place, is only with a view to make it difficult for the defendant to contest the case effectively. Learned counsel submitted that the
discretion vested in the Court under Cl.14 of the Letters Patent should not be exercised in favour of such a party particularly when there is a
danger of the absence of fair trial. According to him, the plaintiff who seeks equity, should do equity and in the absence of any explanation on the
part of the plaintiff for not filing the suit at the places where the infringement is said to have been committed, he should not be permitted to combine
the causes of action.
A good part of the argument advanced by learned counsel for the defendant with reference to question No.2 was also the argument with
reference to question No.3. The matters to be considered under question No.3 will have a large bearing on question No.2. Hence, I propose to
address myself to the two questions together.
Before proceeding to discuss the aspects of law on the subject, it is necessary to refer to the relevant averments in the plaint upto the end of
paragraph 8 of the plaint, there is absolutely nothing to indicate that the plaintiff is claiming a copyright in this action. For the first time in paragraph
9 there is an indirect reference to a claim of copyright by the use of the terms ''artistic creation'' in that paragraph. Apart from using the two words,
there is nothing in the said Paragraph to indicate that the plaintiff is claiming to be the owner of a copyright, paragraph 10 of the plaint does not
make any reference to copyright. In Paragraph 11 of the plaint, there is one sentence to the effect that the defendant''s carton reproduces
substantially all the essential features of the plaintiff''s artistic work. One has to infer therefrom an infringement of copyright is being alleged.
Paragraph 12 sets out the essential features of the plaintiff''s label which are copied by the defendant. In paragraph 13 the specific allegation is that
the sale of each packet with the impugned label has given rise to three causes of action simultaneously, one of them being infringement of plaintiff''s
copyright. In paragraph 14 the same allegation is repeated. In the prayer paragraph, viz paragraph 18, prayer (a) relates to infringement of
copyright. Nowhere in the plaint it is stated as to how the plaintiff claims to be the owner of the copyright. Under S.17 of the Copyright Act, 1975,
the author of a work shall be the first owner of the copyright. In relation to an artistic work other than a photograph ''author'' means the artist, (vide
S. 2(d) of the Act). Under Proviso (c) to S. 17 of the Copyright Act, in the case of work made in the course of the author''s employment under a
contract of service or apprenticeship, to which Cl.(a) or Cl.(b) does not apply, the employer shall, in the absence of any agreement to the contrary,
be the first owner of the copyright therein. In this case, Cls. (a) and (b) of Proviso to S.17 will not apply. There is no whisper in the plaint that the
author of the artistic work in question was in the employment of the plaintiff at the time when the work was made or that the work was made in the
course of the author''s employment under a contract of service or apprenticeship with the plaintiff. The non-disclosures of the above facts in the
plaint assumes importance on account of the allegation found in the counter affidavit that the colour scheme adopted by the defendant is common
to tea trade and that the defendant would refer to the tea packets containing the same colour scheme used by various tea manufacturers. When a
person comes to Court claiming relief on the allegation of infringement of copyright, it is essential for him to set out in the plaint the details relating to
the ownership of the copyright. Particularly when the plaintiff is not an individual but a corporate body, it should be stated clearly as to who is the
author of the artistic work in which copyright is claimed and as to how the plaintiff claims to be the owner of the same. This is not a case in which
the plaintiff has registered its work under the Copyright Act. I do not for a moment say that registration under Copyright Act confers any right of
ownership. But, the registration would be prima facie evidence of the claim made by the plaintiff on a particular date. It might be possible for the
plaintiff in the course of the trial to let in evidence on those aspects. But at this interlocutor stage, the court has to take note of the absence of any
pleading with regard to the same. In my view, this absence of any pleading with aspect of the matter is relevant for considering both questions 2
and 3.
I have already extracted Cl.14 of the Letters Patent. The Clause only enables the Court to call on the defendant to show cause why the several
causes of action should not be joined together in one suit. The language is quite significant. It uses the terms ""it shall be lawful for the said High
Court"". That shows that it is not a mandatory provision and it is only directory in nature. It is entirely in the discretion of the Court to permit the
joinder of several causes of action in one suit depending on the facts and circumstances of each case. The cause of action in respect of which this
Court has jurisdiction is the alleged infringement of copyright It is by virtue of S.62(2) of the Copyright Act, this Court gets jurisdiction to entertain
the suit. Sub-S.(2) of S.62 of the Act makes a departure from the normal law that a suit should be instituted at the place where the defendant
resides or carries on business or personally works for again. The language of sub-S.(2) is also significant. The sub-Section only includes a Court
within whose jurisdiction the plaintiff resides or carries on business etc. It is very clear that the plaintiff is given a choice of forum and he can
institute the suit either in the District Court of the place where the defendant resides or carries on business according to the general law or at the
place where he himself resides or carries on business. The Section does not say that a suit for an infringement of copyright shall be instituted only in
the Court within whose jurisdiction the plaintiff resides or carries on business. The District Court in whose jurisdiction the alleged cause of action
has arisen, that is to say where the defendant has committed an infringement, has also jurisdiction to entertain the suit. It is in that context, the
question whether leave should be granted to the plaintiff to combine the three causes of action, two of which admittedly have not arisen within the
jurisdiction of this Court, has to be considered. The judicial discretion vested in the Court under Cl.14 of the Letters Patent has to be exercised
with care and caution. The circumstances which are relevant to be considered in exercising the discretion are, whether the plaintiff is in such a
situation, financially or otherwise, that it will be difficult for him to institute the suit at the place where the cause of action has arisen or where the
defendant resides or carries on business and whether the defendant will find it so difficult as to contest the action effectively. In a way the balance
of convenience has to be considered by the Court. If the plaintiff satisfies the Court that it will be very difficult for him on account of some reason
or other to approach the Court within whose jurisdiction the cause of action has arisen or the defendant resides or carries on a business, the Court
will be inclined in such cases to �rant leave to combine the causes of action. If in a given case, the Court finds that there is no explanation or
justification for the plaintiffs making a departure from the general law and invoking the special provision under S.62(2) of the Copyright Act, the
Court shall refuse to permit the plaintiff to combine the causes of action. There is no dispute in this case that the plaintiff is having branches all over
India and there will be no difficulty whatever for the plaintiff to institute a suit in Visakhapatnam or Nagpur where the plaintiff is alleged to have
noticed in the market the sale of defendant''s tea packets or at Raipur where the defendant is having its office. No explanation is attempted to be
given in the plaint or in the affidavit as to why one of such forums is not chosen by the plaintiff. The averment in the plaint is to the effect that the
plaintiff has a right to approach this Court by virtue of S.62(2) of the Copyright Act. No doubt it may be so. But, on the facts and circumstances of
this case, the use of the process of this Court will amount to abuse or misuse of the same. Admittedly, the defendant is a small trader having started
business recently. To drag him all the way from Raipur to Madras would in effect deprive him of an opportunity to have a fair trial as he may not be
in a position to defend the action effectively. Particularly in a case where the averments found in the plaint do not contain the required particulars
for making out the only cause of action which is said to have arisen within the jurisdiction of this Court, it will be a travesty of justice to permit the
plaintiff to combine two other causes of action which have admittedly arisen elsewhere.
Learned counsel for the defendant drew my attention to the following definition of the term ''abuse of process'' found in Corpus Juris
Secundum, Volume LXXII, Page 1187, Art. 119:--
An abuse or malicious abuse of process is its wilful or malicious use to obtain a result which the process was not intended by law to effect.
The intention behind S.62(2) of the Copyright Act is to save the wronged person whose copyright has been infringed from the trouble or
inconvenience of going to sue the defendant at another place which may very often be a far away place. It is well known that the authors of literary,
dramatic, musical and artistic works in this country are mostly in penury. The action was not intended to help huge business establishments with
branches all over the country to drag a small trader to a Court far away from his place of business with a view to stifle his defence.
Learned counsel for the plaintiff placed reliance on the judgment in Glaxo Orthopedic U.K. Ltd. Vs. Samrat Pharma, . On the facts of the
case, the Court found that there was infringement of the trademarks and copyright of the plaintiff. One of the contentions raised by the defendant in
that case was that the High Court of Delhi did not have jurisdiction to entertain the suit as no cause of action or part thereof had arisen in Delhi and
the registered office of the plaintiff was situated at Bombay. After referring to S. 62(2) of the Copyright Act. the learned Judge observed that ""It is
apparent from a plain reading of the aforesaid provisions that the territorial jurisdiction with respect to any suit or other civil proceeding in respect
of infringement of the copyright shall be the place where the plaintiffs or if there are more than one, any one of them is residing, carrying on business
or personally words for gain"". If the learned judge meant thereby that the Court in plaintiff''s place will be the only Court having jurisdiction, I do
not agree. The Section does not confine the jurisdiction to the Court at the place where the plaintiff resides, carries on business or personally
works for gain. The Section only adds ; one more court to the Courts which will have jurisdiction under the general law. I have already referred to
the terms of the sub-section and pointed out that the jurisdiction of the Court at the place where the defendant resides, or carries on business or
personally works for gain, is not taken away by the section. As regards the combining of the causes of action, the learned Judge observed as
follows :
During arguments the complaint of the counsel for the defendant was that the plaintiff had acted with the cleverness by way of combining his
cause of action on the basis of trademark with the one on the basis of copyright to that could bring suit in respect of both the causes of action at
Delhi, that that cleverness should not be encouraged and that, therefore, it should be held that this Court has no territorial jurisdiction to entertain
the suit. But in my view there is hardly any cleverness, They plaintiffs desire protection against infringement of their rights with respect to their
products Glucose-D and Glucon-D. The products are the same while different types of rights are claimed. The plaintiffs claim rights as proprietor
of registered trademark as well as copyright with respect to the carton of the very same product. Not only that the plaintiffs could combine these
cause of action on the basis of registered trademark and registered copyright, by also it was absolutely necessary to have done so, because the
same were being claimed in respect of the same product.
It is seen that there was no plea of hardship or any difficulty for the defendant in that case to defend the action in Delhi. No question was raised
with reference to the balance of convenience being in favour of the defendant. Hence, there was no occasion for that Court to consider the matters
which I have referred to earlier. Hence, the decision in that case will have no relevance to the facts of this case.
S.62(2) of the Copyright Act permits a deviation from the general law. It is an exception to the rule and it has to be sparingly used only in
circumstances intended by the legislation. An exception should always remain so and cannot be converted into the rule. When a plaintiff has the
convenience and facility to approach the Court prescribed by the general law, he should not be permitted to resort to the exception provided in the
section particularly when the defendant will thereby be put to great disadvantage and unnecessary hardship. The Court may not in such cases be in
a position to dismiss the suit as not maintainable or as one filed in a Court without jurisdiction but the Court will certainly refuse to grant reliefs to
his by invoking its inherent power preserved by S.151, C.P.C., to prevent abuse of the process of the Court.
In AIR 1928 106 (Nagpur) it was held that getting an undue advantage by the use of the rules of procedure, however correct that use may be,
is an abuse of them. Rejecting the argument that when there are express provisions of law, S.151, C.P.C., has no application, the Court observed :
That is perfectly true in a sense, but a sense directly opposite to that in which is has been understood. Where there are direct provisions of the law
by which justice can be attained and injustice avoided S.151 naturally has no application. It applies only when there are direct provisions of the law
of procedure which lead to injustice.
In Halsbury''s Laws of England ; Fourth Edn., Vol. 37, page 322, para. 434, the law is stated thus :
An abuse of the process of the Court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or
oppression or for ulterior purposes, or more simply, where the process is misused.........Even where a party strictly complies with the literal terms
of the rules of Court, yet if he acts with an ulterior motive to the prejudice of the opposite party he may be guilty of an abuse of process...
The case in Castanhe v. Brown and Root (UK) Limited 1981 I All E.R. 143, has been cited therein. In that case, a notice of discontinuance of an
action in England was given by the plaintiff therein. RSC O.21, R.2(1) provided that the plaintiff in an action begun by writ may, without the leave
of the Court, discontinue the action, or withdraw any particular claim made by him therein, as against any or all of the defendants at any time not
later than 14 days after service of the defence on him. Though the rules enables the plaintiff to withdraw the claim made by him in the action without
the leave of the Court by simply issuing a notice of 14 days on the defendant, the House of Lords held that in the facts and circumstances of the
case, notice of discontinuance amounted to an abuse of process of the Court and that the trial Judge was right to strike out the notice. Lord
Scarman observed as follows:--
The Court has inherent power to prevent a party from obtaining by the use of its process a collateral advantage which it would be unjust for him to
retain; and termination of process can like any other step in the process, be so used. I agree therefore, with Parkert, J and Lord Denning MR
service of a notice of discontinuance without leave, though it complies with the rules, can be an abuse of the process of the Court.
In Repaka Mamilayya and others v. Addepalli Venkataratnam 45 M.L.J. 312 an interim injunction was issued by the District Munsif stopping
a Court sale at the instance of the sons of the judgment-debtor who had filed a suit for partition of the property. The order of injunction was not
served on the decree-holder. The sale deed was fixed to take place on the same day. Later in the day, the Judgment-debtor filed an application for
an adjournment of the sale on the ground that the bidders had come and gone thinking that the auction would not take place. That application was
rejected by the District Munsif and the sale was held. The sale was set aside by the appellate Court on the ground of illegality. The matter was
brought to this Court in revision. While affirming the order of the appellate Court, the Division Bench of this Court which dismissed the revision
petition, observed as follows:--
It is no doubt true that the District Munsif''s conduct in the present case was not, so far as we have been shown in contravention of any definite
provision of law. On the other hand, there is the fact that his action resulted in what must be described, in the words of S.151, as an abuse of the
process of his Court ; and we therefore held that we are entitled to use, as the lower Appellate Court was entitled to use, the inherent power
recognised in that section to prevent the consequences.
Thus, even an action which is not in contravention of any particular provision of law could be an abuse of process of the Court. I hold that the
plaintiff is guilty of misuse and abuse of process of this Court in approaching this Court even though the institution of the suit in this Court is
permitted by S.62 (2) of the Copyright Act,
The natural corollary is the plaintiff will not be entitled to the equitable relief of injunction pending the disposal of the suit. Apart from the fact
that the plaint does not contain the required particulars on the ownership of copyright, a comparison of the plaintiff''s label with that of the
defendant shows that a prima facie case of infringement of copyright has not been made out. The most effective test is suggested in Copinger and
Sokne James on Copyright. Tenth Edition, paragraph 420 at page 162 in the following terms:--
Various definitions of ''Copy'' have been suggested, but it is submitted that the true view of the matter is that, where the court is satisfied that a
defendant has in producing the alleged infringement, made a substantial use of those features of the plaintiff''s work in which copyright subsists, an
infringement will be held to have been committed; if he has made such use, he has exercised unlawfully the sole right which is conferred upon the
plaintiff. If this view is correct it follows that the degree of resemblance between the two works is not in itself the test of infringement but is only one
factor in determining whether an unlawful use of the plaintiff''s work has been made. For example, assume two cases in which advertising posters
resemble the plaintiff''s original and that, in the one cases in which the resemblance is less close, it is proved aliunde that the defendant''s artist had
the plaintiff''s work in front of him and slavishly imitated certain specific features of the design, but in the order, though the general appearance is
closer, the artist is able to establish that, though he made use of the plaintiffs basic idea, his execution was quite independent, it is submitted that the
former and not the latter would be an infringement.
I am of the view that the present case is akin to the latter case in the example.
In P. Narayanan''s Copyright Law, page 148, it is said that in deciding whether copying is substantial, four principal matters are to be taken
into account. They Ire first the volume of the material taken, bearing in mind that quality is more important than quantity how much of such material
is the subject-matter of copyright and how much is not; thirdly, whether there has been an animus furaudi on the part of the defendant equivalent to
an intention on the par of the defendant to take for the purpose of saving himself labour, fourthly, the extent to which the plaintiff''s and defendant''s
books are competing work. The same test, would apply to artistic work also. Applying he said test, I am prima facie of the opinion that no
infringement of copyright has been made out in this case. To qualify for copyright protection, an artistic work must be original, i.e. it must originate
from the author. The work need not possess any artistic quality; but the author must have bestowed skill judgment and effort upon bestowed skill
judgment and effort upon the work. It is not possible to say that any skill, judgment or effort has been bestowed on the plaintiff''s work and the
defendant could have designed his label excepting by looking at the label of the plaintiff.
The result of the above discussion is that the plaintiff is not entitled to combine the three causes of action in this suit. He is not also entitled to
the grant of interim injunction for the alleged infringement of copyright.
The last question that remains to be considered is whether the plaintiff is entitled to injunction with reference to infringement of trademark and
passing off. As I have not permitted the plaintiff to combine the causes of action, this court has no jurisdiction to entertain the suit with reference to
infringement of trademarks and passing off. Even according to the plaint, cause of action on those two counts has arisen only in Nagpur and
Vizagapatnam. Hence the prayer for injunction against infringement of trademark and passing off has to be rejected. In the result, all the application
are dismissed with costs. Counsel''s fee Rs. 1000/-.