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| How hot is this stock? (Rediff) |
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| Mutual Fund Meter- Is your fund the best? (moneycontrol) |
The dispute arose out of E-Eighteen.com's alleged infringement of Rediff.com's copyrighted analog image of a 'Dial' on Rediff Moneywiz. The Rediff Moneywiz Dial enabled users to reach a quick and snapshot conclusion about the prospects of a stock or a mutual fund. The quest of this žanalogue image€Ÿ led to the creation of the Dial, having the features of a Dial - like graphics, with a description titled: "How Hot is this Stock?" The Dial helped users to make a judgement about a stock or a mutual fund. The critical parameters that determined the prospects of a stock or a mutual fund were identified by the plaintiff, and these parameters were put into a formula that computed and displayed the prospects of a stock or a mutual fund on the Dial.
The defendant company E-Eighteen.com ran the popular website Moneycontrol.com- a personal finance portal. In May 2008, the plaintiff noticed a Dial on Moneycontrol.com titled Mutual Fund Meter, allegedly highly similar to the plaintiff's Dial. The plaintiff claimed that the Dial was unique to the plaintiff, and that the plaintiff had put in efforts to create and develop the formula and the principle underlying the Dial. Furthermore, the plaintiff's Dial had been registered in April 2008 with the Registrar of Copyrights. The plaintiffs filed a suit for copyright infringement in the Delhi HC which went to trial, and was ultimately dismissed by Justice Vipin Sanghi.
Rediff.com India Ltd. v. E-Eighteen.com Ltd. C.S. (OS) No.1115/2008
Contentions
The plaintiff claimed that it expended huge sums of money in developing the Dial, and in marketing and promoting the same. They had achieved a large and extensive web base of users and built up a very large and valued reputation and goodwill for its Dial. The defendants had knowledge of the plaintiff's prior use of the Dial and its functions, and the defendant started using the "Mutual Fund Meter" much later. Users were very likely to associate the two Dials with each other, especially because the class of users are same across the two products. The plaintiff also claimed that the dial adopted by the defendant was an "adaptation" of the plaintiff's work.
The defendant claimed to be a prior-user because it was granted a license in May 2006 by Infosoft Global (a company) to use the dial for which a license fee of US$ 507.99 was also paid. It was argued that the plaintiff therefore was neither the first user of the copyright, nor entitled to any exclusive rights since it was not the owner of the copyright in terms of section 17 of the Copyright Act. The defendant claimed that Infosoft Global was a necessary party to the proceedings. Further, the colour scheme, layout and appearance of the plaintiff's Dial were distinguishable from that of the defendants therefore, there was no likelihood of confusion. In the alternative, the defendant pleaded that there is no originality in the visual image of the Dial, and that graphical representation of a dial is common property. A dial has been used in various forms for ages, and has been a common source of inspiration to people from different streams. Copyrighting a generic image cannot be permitted in public interest. Reliance was placed on the SC judgment in EBC v Modak, advancing the argument that the word "original" did not mean that the work must be the expression of original or innovative thought. Merely because a Dial may have been used in the past for scientific purposes and in mechanical devices, the literary-cum-artwork of the plaintiff does not cease to be "original". Further, the judgement of Madras HC in V.Govindan Vs. E.M. Gopalakrishna Kone was also cited, submitting that where there is a "common source", the person relying on it must prove that he actually went to the common source from where he borrowed, employing his own skill, labour and brains and that he did not merely copy.
The Plaintiff's witness (PW-1) stated that they had designed and developed the original Dial artwork, for and on behalf of the plaintiff company. Vide a deed of assignment dated 19.12.2006 they relinquished their rights with respect to the said artwork in favour of the plaintiff company. He stated that the plaintiff company had been using the original art work since December 2006. PW-1 in the cross-examination later, inter alia, clarified that he had not designed the artwork from scratch. However, the same had been developed by him, while a Mr. Rajesh Karkera of their team had prepared the final design. He listed the parameters to assess the stock of a company to be reflected on the Dial correspondingly.
PW-1 and PW-2 admitted in cross-examination that visual representation by way of a Dial is quite common and that dials have been in existence since times immemorial.
The Defence Witness (DW-1) stated that the defendant company was granted a license on 09.02.2006 by Infosoft Global Private Ltd. for use of the analogue Dial for providing stock market quotes, analyses and market voices, for which a license fee of US$ 507.99 was paid by the defendant in February 2006. Infosoft Global had issued letters/ certificates dated 18.07.2008 to the defendant confirming the license granted for the use of fusion charts, and also confirming that Infosoft Global was the owner and developer of the fusion charts
Further the Counsel for defence argued that a mere registration of a copyright does not not raise any presumption in favour of the plaintiff with regard to the validity of the claim for copyright, or with regard to its alleged infringement. Reference was made to Section 48 of the Act, and the same is compared to Section 31 of the Trademarks Act, 1999. It was argued that the Registrar of Copyrights is only prima facie evidence "of the particulars entered therein" which saves that plaintiff from rendering the original certificate in Court for purposes of admitting evidence. The defence submitted that the grant of registration of a trademark is preceded by an extensive and exhaustive search, advertisement, invitation of objections and opposition and decision on the opposition to the trade mark, if any. The said scheme is not adopted in the case of registration of a copyright and, therefore, registration of a copyright does not vest any presumption of validity of a claim for copyright in the work which has been got registered under the Act. He argued that since the Dial was a common device, there was minimal creativity involved in the creation of the plaintiff's Dial. He submitted that lack of minimal creativity, in any event, cannot be protected under the Act, as it lacked originality, in view of the EBC v Modak judgment. Further, the plaintiff had no evidence to establish violation of its copyright by leading any independent evidence of any actual confusion in the mind of any user or customer. Also, no evidence to support the plea of passing off was led by the plaintiff.
The Court held that what the plaintiff sought was, in fact, copyright over the idea of using a Dial to display the strength of its recommendation for purchase/sale of a stock/mutual fund. There is no copyright created or protected by law in such an idea, even if it is accepted that it is the original idea of the plaintiff to use the medium of a Dial to project its recommendation for purchase/sale of stock and mutual fund.
However, the copyright in the Dial drawn created by the plaintiff-with its peculiar use of colours and notations of "Cold" and "Hot" and with the literary work "How Hot is this Stock?" was the plaintiffs original work, despite the fact that a Dial has been used for centuries to display variations of properties already mentioned above, and innumerable other properties. It was the combination of all the aforesaid aspects which was original to the plaintiff inasmuch, as, the plaintiff had created the same, which actually enjoyed protection. Similarly, the work of the defendant was also held original with the words "Mutual Fund Meter" and the representation of a semi circular Dial with needle; the use of different colours in different sectors of the semi-circle, and the use of different words.
The Court also observed that the plaintiff did not claim proprietary right in the underlying software utilised by it-for arriving at its recommendation in respect of a stock/mutual fund, or that the said software has been used and exploited by the defendant to arrive at its own recommendation with regard to sale/purchase of mutual fund. It was only the projection of the recommendation by means of a Dial which is objected to by the plaintiff.
As observed in R.G. Anand v Delux Films, where the same idea has been developed in a different manner, it is manifest that the source being common, similarities are bound to occur. Therefore, if the plaintiff and defendant are both using the mechanism of a Dial for the same purpose i.e. to convey their respective recommendation for sale/purchase of stock and mutual fund, they are bound to be similar, as the Dial is common to both. In such cases, the Courts are required to determine whether, or not, the similarities are in the fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. The Supreme Court further held in this case that as violation of copyright amounts to an act of piracy, it must be proved with clear and cogent evidence after applying the various tests laid down by the Supreme Court.
In the present case, the plaintiff had led no independent evidence of any independent reader, spectator or viewer,who-after having seen both the works, formed an opinion or got an unmistakable impression that the work of the defendant appears to be a copy of the plaintiff work. A detailed comparison of the works of the plaintiff with that of the defendant, on the whole, led to the Court's inference that the two works were not similar. Apart from the fact that both the plaintiff and defendant are using a Dial - which the defendant is entitled to use, there is no other similarity. The tag-line of the plaintiff "How Hot is this Stock?" was not used by the defendant at all. The defendant used the words "Mutual Fund Meter" which, by no stretch of imagination, could be said to be similar to the tag-line of the plaintiff.
It upheld the defendant's contention and observed that the registration of a copyright, unlike that of a trademark, is indeed a prima facie evidence "of the particulars entered therein". The registration of the copyright does not save the registrant from a charge of infringement of copyright of another, and does not lend any presumption of validity to the copyright of the registrant, much less the registration can be used to attack the work of another-as being an infringement of the copyright of the work which is registered.
The Court rejected the plaintiff's submission that the defendants had 'adapted' the plaintiff's work, considering the meaning of 'adaptation' under s. 2(a). The defendants definitely did not abridge, alter or re-arrange the plaintiff's work.
Thus, the plaintiff's failed to establish infringement or deceptive similarity between the two works. The suit was dismissed with costs of Rs 50,000.
Decision of the Delhi High Court
However, the copyright in the Dial drawn created by the plaintiff-with its peculiar use of colours and notations of "Cold" and "Hot" and with the literary work "How Hot is this Stock?" was the plaintiffs original work, despite the fact that a Dial has been used for centuries to display variations of properties already mentioned above, and innumerable other properties. It was the combination of all the aforesaid aspects which was original to the plaintiff inasmuch, as, the plaintiff had created the same, which actually enjoyed protection. Similarly, the work of the defendant was also held original with the words "Mutual Fund Meter" and the representation of a semi circular Dial with needle; the use of different colours in different sectors of the semi-circle, and the use of different words.
The Court also observed that the plaintiff did not claim proprietary right in the underlying software utilised by it-for arriving at its recommendation in respect of a stock/mutual fund, or that the said software has been used and exploited by the defendant to arrive at its own recommendation with regard to sale/purchase of mutual fund. It was only the projection of the recommendation by means of a Dial which is objected to by the plaintiff.
As observed in R.G. Anand v Delux Films, where the same idea has been developed in a different manner, it is manifest that the source being common, similarities are bound to occur. Therefore, if the plaintiff and defendant are both using the mechanism of a Dial for the same purpose i.e. to convey their respective recommendation for sale/purchase of stock and mutual fund, they are bound to be similar, as the Dial is common to both. In such cases, the Courts are required to determine whether, or not, the similarities are in the fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. The Supreme Court further held in this case that as violation of copyright amounts to an act of piracy, it must be proved with clear and cogent evidence after applying the various tests laid down by the Supreme Court.
In the present case, the plaintiff had led no independent evidence of any independent reader, spectator or viewer,who-after having seen both the works, formed an opinion or got an unmistakable impression that the work of the defendant appears to be a copy of the plaintiff work. A detailed comparison of the works of the plaintiff with that of the defendant, on the whole, led to the Court's inference that the two works were not similar. Apart from the fact that both the plaintiff and defendant are using a Dial - which the defendant is entitled to use, there is no other similarity. The tag-line of the plaintiff "How Hot is this Stock?" was not used by the defendant at all. The defendant used the words "Mutual Fund Meter" which, by no stretch of imagination, could be said to be similar to the tag-line of the plaintiff.
It upheld the defendant's contention and observed that the registration of a copyright, unlike that of a trademark, is indeed a prima facie evidence "of the particulars entered therein". The registration of the copyright does not save the registrant from a charge of infringement of copyright of another, and does not lend any presumption of validity to the copyright of the registrant, much less the registration can be used to attack the work of another-as being an infringement of the copyright of the work which is registered.
The Court rejected the plaintiff's submission that the defendants had 'adapted' the plaintiff's work, considering the meaning of 'adaptation' under s. 2(a). The defendants definitely did not abridge, alter or re-arrange the plaintiff's work.
Thus, the plaintiff's failed to establish infringement or deceptive similarity between the two works. The suit was dismissed with costs of Rs 50,000.
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