2004 PLP 871 (CLD)

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 liable 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 No. 1 also filed 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 filing 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, reproduced 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 the rectification petition. It was said the at the Board which enjoined the power of receiving evidence and summoning witnesses in accordance with the C.P.C., 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 earlier 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) reads as follows:‑‑ "Correction of entries in the Register 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 Register was wrongly made calling for a rectification"?

12. While going through the impugned order, some excerpts from which have been reproduced 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 not safe under the circumstances and the respondent having lost his case before the Registrar on basis of material which he produced, the case deserved remand to the Registrar for allowing parties to adduce evidence as to 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 g fact 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 riot based on sound judgment, calls for interference. This Court, therefore, 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 the Deputy Registrar (Judicial) of this Court by the 10th of May, 2004. S.A.K./W‑6/L Case remanded.