In the present case, the Delhi High Court noted that Roderick John Andrew Mackenzie (hereinafter referred to as “the Plaintiff”) had merely contributed to an issue of the artistic paintings. In contrast, the copyright in the work would exist best for the composite mark. Accordingly, the Court discovered that not one of the events had copyright inside the creative paintings.
Facts
The match turned into filed via the Plaintiff in opposition to Himalayan Heli Services Pvt. Ltd (hereinafter referred to as “the Defendant”) for the motive looking for permanent injunction restraining the Defendant their employees, servants, marketers, and many others. From the usage of or in any other case copying, promoting, impacting the market, counterfeit/unlicensed versions of the Plaintiff’s copyright in his creative paintings ‘HIMALAYAN HELI SERVICES’ in any shape, form or manner which amounted to an infringement of the Plaintiff’s copyright.
Plaintiff became a mountaineer who had some distance-reaching experience of expeditions within the Himalayas and became worried inside the commercial enterprise of skiing, trekking, and rafting. Defendant becomes a non-public confined organization incorporated in July 1998 as a 100% subsidiary of the M/s World Expeditions (India) Pvt. Ltd., who turned into engaged inside the enterprise of engaging in helicopter operations.
It changed into alleged with the aid of Plaintiff that it noticed on the internet and elsewhere that the Defendant turned into infringing Plaintiff’s copyright and had titled it as “HIMALAYAN HELI SERVICES” and become the usage of the artistic work of the Plaintiff which includes pictorial representations of the stated inventive work with identical shades, layout, features, get-up, and many others. On its websites, letterheads, stationery, enterprise playing cards, and so forth.
It is alleged that Defendant became infringing the creative work of Plaintiff through posting the insignia inside the numerous exhibitions, galleries, newspapers, and so forth each in Delhi and Transborder.
Plaintiff’s Contentions It turned into alleged that Plaintiff became the authentic creator, lawful owner, and proprietor of the copyright in the creative work titled “HIMALAYAN HELI SERVICES’ and the same became registered in Plaintiff’s choose on January 28, 2008.
It becomes contended that Defendant was wrongly and illegally the use Plaintiff’s copyright inside the creative work titled “HIMALAYAN HELI SERVICES” on its websites, letterheads, stationery, enterprise playing cards, and so on. It turned into claimed that Defendant’s emblem has an equal get up, format and functions as that of Plaintiff’s. It becomes contended that Plaintiff changed into additionally the first user of the inventive work as according to Section 17 of the Copyright Act (hereinafter referred to as ‘the Act’) and was entitled to all one-of-a-kind rights as supplied beneath Section 15 of the Act.
It changed into contended that Defendant themselves had admitted that the Plaintiff was the usage of the emblem of a triangular mountain with the snowboarding trail surrounded using clouds, for that reason, the subsequent adoption of the Defendant of the brand with a helicopter in a mountain and the clouds now not most effective infringed the Plaintiff’s creative work however also amounted to passing off.
Defendant’s Contentions
It claimed to be engaged inside the commercial enterprise of conducting helicopter operations.
= It became contended by way of Defendant that across the yr 1989-ninety, Plaintiff had confirmed interest in doing business in India in the place of Heli-Skiing and thereafter, a working arrangement become entered into between M/s World Expeditions Pvt. Ltd and the Plaintiff to organize tours for Heli-Skiing.
It turned into alleged that Plaintiff wanted to conduct the commercial enterprise below the name and style of Himalayan Heli-Skiing. Still, at the objection by Defendant at the identical, Plaintiff modified the call of its operation to Himachal Helicopter Skiing with a logo being a triangular mountain with a ski path surrounded via clouds. Later, Defendant modified the nomenclature from M/s World Expeditions (India) Pvt. Ltd to ‘HIMALAYAN HELI SERVICES’ Private limited.
It becomes said that inside the 12 months 1998, at some stage in the formation of the Defendant, a brand was designed depicting a helicopter in a triangle with clouds around it, the triangle depicted the mountains. The clouds have been claimed to be placed on the proposal of Plaintiff. It became submitted that the image of ‘Dorje’ became integrated into the Defendant brand with the aid of one Mr. Wangchuk, who was a training Buddhist. Further, It is said that M/s Mahavir Printers changed into engaged to lay out a suitable emblem for Defendant with a ‘Dorje’ and out of the numerous designs given, Defendant selected the present emblem/insignia. Thus the unique artwork in this brand containing the Dorje/vajra is of the Defendant and no longer the Plaintiff, and it changed into claimed that the brand containing the Dorje become a unique creative painting of the Defendant.
It becomes submitted through Defendant that the dispute among the events arose inside the yr 2006 and alsothat Plaintiff becameolutely aware of the trademarks being used by Defendant and the Plaintiff used the emblem containing ski trail in a triangular mountain surrounded by using clouds. It became contended that the Plaintiff’s match became at risk of being dismissed as cloth concealment of facts. Defendant has used its brand with a helicopter in triangular mountain clouds and George in ‘HIMALAYAN HELI SERVICES.’
