Raja Pocket Books v. Radha Pocket Books
Before the Hon’ble High Court of Delhi at New Delhi
1997 PTC (17)
Decided on: 06.12.1996
Plaintiff filed a suit against the Defendant seeking declaration and permanent injunction restraining infringement of Copyright as well as Passing Off by use of the name and character ‘NAGESH’ which was deceptively similar to ‘NAGRAJ’ and the manner of depiction of which was a substantial reproduction of the depiction of ‘NAGRAJ’. The suit was fro infringement of Copyright of the character ‘NAGRAJ’ as well as passing off.
- The character ‘NAGRAJ’ is immensely popular with children.
- The first issue of ‘NAGRAJ’ came in March, 1986.
- The sale of the ‘NAGRAJ’ comics till date of the filing of the suit was around Rs. 5 Million.
- The advertisement expenses till date of the filing of the suit were around Rs. 0.8 Million.
- The ‘NAGRAJ’ character in the Plaintiff’s book series is a green colured snake-man giving impression of a serpentine snake wearing red trunks and belt.
- The character has magical snake-like qualities.
- The character was designed by Late Shri Jagdish Pankaj in June, 1985.
- Mr. Pankaj assigned the same to Plaintiff.
- Plaintiff owns Copyright in comics titled ‘NAGRAJ’ as well as in the get up and appearance of ‘NAGRAJ’, situations and incidents in those comics.
- Defendant came out with books titled ‘NAGESH’, wherein the central character was in a similar get up and appearance as ‘NAGRAJ’ and had same magical powers.
- The concept and meaning of the characters is the same along with their colour, costumes, powers and abilities.
- Thus, Defendant has committed infringement of Copyright and Passing Off.
- Plaintiff has no Copyright in the artwork of the character ‘NAGRAJ’.
- Other publishers are showing a serpentine skin in a green coloured body and such green coloured serpentine skin is indicative to the character and role of serpentine human beings and such green colour is common to the trade.
- Defendant’s adoption of the character ‘NAGESH’ is original.
The Hon’ble Court ruled in the favour of the Plaintiff on the following grounds:
- The central idea and origin of two characters is the same.
- On applying the lay observer test (If the reader, spectator, viewer after reading or viewing both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work is copy of the original, then there is violation of Copyright) for infringement of Copyright, there is no escape that there is a violation of Copyright.
- The customers of both the products are children or people of younger generation.
- There is a likelihood of confusion on applying the test of Doctrine of Fading in Memory, i.e. comparison from point of view of man of average intelligence and imperfect recollection.
- Functionally both the characters are capable of doing the same thing, namely, scaling the walls and roofs, hurling snakes, causing objects to melt by use of poison, snakes capable of merging into the body of the character, snakes are being used by both the characters as ropes.
- Both are in green colour and wear red trunks.
- Plaintiff is prior user of the mark ‘NAGRAJ’.
- The objection of common to trade cannot affect Plaintiff’s right particularly in view of the fact that it is not shown that the Plaintiff’s right stood lost due to abandonment, acquiescence or otherwise.
- Mere sporadic user/piracy in a concealed manner by the others will not give any right to the defendant to violate the Plaintiff’s right.
Author: Ankit Rastogi