C CUNNIAH AND CO Vs. BALRAJ AND CO

JUDGEMENT

(1.) This appeal against the judgment and decree-of Ramaswami J. in C.S. No. 127 of 1953 arises out of a suit instituted by the appellants as plaintiffs for the reliefs of injunction, damages and accounts against the respondents. The appellants, Messrs, C. Cunniah and Co., are a firm of merchants carrying on business in Madras City in pictures, picture frames etc. In 1932, according to the case in the plaint, one Sri T. M. Subramaniam drew a picture, M. O. 1 of Lord Balasubramanya and gave it the title of Mayurapriya. On 13-7-1938, he assigned the copyright in this picture to the appellant firm. From 1940 onwards, the appellant firm were making and selling printed copies of this picture to the public. There was, however, a temporary stoppage of the sale between 1946 and 1950 owing to scarcity of printing materials due to war conditions. However, the printing and sale were resumed from 1950 onwards. The appellant firm got this picture registered under the Trade Marks Act of 1940 sometime in 1952. Sometime before October 1952, it came to the knowledge of the appellant firm that the respondent firm was printing and selling copies of a close and colourable imitation of the appellants' picture under the style of Bala Murugan. The appellants' case is that the Picture "Bala Murugan" printed and sold by the respondents is a colourable imitation of the picture "Mayura Priya" in which the appellant firm owns the copyright. Though called upon to cease the sale of the picture "Bala Murugan", the defendants-respondents refused to comply with this demand. The plaintiffs appellants, therefore, came forward with the suit asking for an injunction, prohibiting the respondent firm from printing or selling the picture "Bala Murugan" and also for a decree for damages in the sum of Rs. 2000 for infringement of the copyright in their picture "Mayura Priya" and for an account of the profits made by the defendants respondents by the sale of their picture "Bala Murugan" and for seizure of the unsold copies of that picture.

(2.) The respondents-defendants contended that their picture was an independent production by the artist D. W. 1 and was not a copy of the plaintiffs' picture "Mayura Priya". They also "contended that the appellants had not acquired copyright in the picture known as Mayura Priya, because, the subject dealt with in that picture was a common subject, in which no copyright could be acquired by anyone.

(3.) The claim in the plaint was put forward both as an infringement of copyright and as an infringement of the registered trade mark right. However, during the trial, the case of infringement of trade mark was given up, as admittedly the picture "Mayura Priya" is not used as a trade mark in relation to any class of goods.