ARIJIT BANERJEE,J. - (1.) In this suit filed for alleged infringement of copyright in the artistic work 'BANPHOOL' (Label) and the artistic work 'BANPHOOL OIL' (Carton), the plaintiff has filed this interlocutory application essentially praying for an order of injunction to restrain the defendant from producing or selling or marketing any product using the said label and carton as portrayed in Annexures - 'K' and 'L' to the petition. The short contention of the plaintiff/petitioner is that it is the owner of the copyright in the artistic work on the said label and carton. It has not permitted the defendant to use the said label and carton for carrying on the defendant's business of manufacture and sale of hair oil. By manufacturing and marketing/selling its hair oil using the said label and carton, the defendant is infringing the plaintiff's copyright in the said label and carton.
(2.) The undisputed facts of the case are that, at all material times, the Sharma Brothers carried on the family business of manufacture and sale of Ayurvedic hair oil under the name of 'BANPHOOL'. This business was carried on in co-partnership, pursuant to a partnership deed executed in 1982 by and between the Sharma Brothers. The name of the partnership was M/s Sharma Chemical Works. The copyright in respect of the artistic work on the said label and carton was registered in the name of the partnership firm. The registration number for the label was A42227/83 and that for the carton was A41272/83. In the registration certificate, in respect of the label, the name of the author of the artistic work 'BANPHOOL' was shown as Shri Biswanath Sharma, partner of Sharma Chemical Works. The registration certificate in respect of the carton showed the name of the author of the artistic work as Shri Kanakendu Tosh.
(3.) In the year 1999 the members of the Sharma family vis. Biswanath Sharma (Biswanath), Sheo Shankar Sharma (Sheo Shankar), Prabhu Nath Sharma (Prabhu Nath), Om Nath Sharma (Om Nath), Mrs. Saraswati Sharma (Saraswati), Mrs. Sova Sharma (Sova) and Saroj Kumar Sharma (Saroj) incorporated a private limited company by the name of Sharma Ayurved Private Limited which is the plaintiff herein. The certificate of incorporation under the Companies Act, 1956, was issued by the Registrar of Companies, West Bengal on 09 August, 1999. The main object with which the said company was incorporated, as stated in the objects clause of its Memorandum of Association, was "to become vested with rights to continue the partnership business now being carried on under the name and style of 'Sharma Chemical Works' including all its assets, rights, interests, benefits, titles, approvals, registrations, permits, facilities, concessions, sanctions, privileges, licences, deeds, liabilities of the parties hereto in the partnership business and in connection therewith." Upon incorporation of the said company, the family business of manufacture and sale of 'Banphool hair oil' was continued through the instrumentality of the said company of which the promoters and share-holders were the members of the Sharma family.;