July 9, 2003	Wednesday	Jumadi-ul-Awwal 8,1424

KARACHI, July 8: The Sindh High Court (SHC) has directed the ministry of law to amend the Copyright Ordinance 1962, to ensure that no infringement of Trade Mark Act 1940, could be made under its cover.

In an order passed by Justice Mushir Alam of the SHC the ministry of law has been directed that Section 39 of the Copyright Ordinance be amended in line with proviso to Section 45 of Indian Copyright Act.

The SHC had passed these orders on June 25, 2003, in a suit No.677 of 2001, filed by plaintiff Pakistan Drug House against Rio Chemical Co (defendant) in respect of infringement of trademark.

While granting injunction application of the plaintiff Justice Mushir Alam of SHC observed that in order to check the abuse of copyright the ministry of law should make necessary amendment in line with proviso to Section 45 of Indian Copyright Act.

The facts leading to the case were that the plaintiff was the registered proprietor of trademark ‘ALTERIS CORDIAL’. Subsequently the defendant seeing the popularity of the trademark, got the said label registered as the artistic work under copyright ordinance and started selling his goods. The plaintiff filed the suit against the defendant for infringement of his trademark. The defendant took the defence that his label is registered as an artistic work and he is entitled to use the same on his goods.

While granting injunction against the defendant for using the impugned label the learned judge said that the purport scheme and object of both the laws are entirely different. The trademark is registerable in respect of some vendible goods and in fact is associated with any vendible goods. The trademark is meant to distinguish the goods of owner of the mark from that of other manufacturer. Such distinction is for the benefit of the consumer as well as manufacturers.

In the order the judge further observed that Copyright in such artistic work is not necessarily or directly associated with any vendible goods. Using copyright material as a substitute for the trademark is not the intent and purpose of Copyright Ordinance 1962, such copyright material independently cannot be used or associated with any vendible or saleable goods unless such copyright is registered under the Trade Mark Act.

Advocate Salim Gulam Husein who represented the plaintiff told Dawn once the proviso to Section 45 of Indian Copyright Act is added to Section 39 of the Copyright Ordinance the necessary vacuum could be filled and this would help in checking such malpractice in trade.