1281R

BEFORE THE

HONBLE SUPREME COURT OF INDIA

AT NEW DELHI, INDIA

APPEAL NO. XYZ OF 2017

IN THE MATTER OF
ABC REPRESENTING LAST RIDE ..........................APPELLANTS

V.
XYZ REPRESENTING TWIST OF FAITH ......................................................... RESPONDENT

CLUBBED WITH

MNO REPRESENTING PERFECT PLEX.....APPELLANTS

V.

PQR REPRESENTING EDGE-O-MATIC...RESPONDANT

MEMORIAL SUBMITTED ON BEHALF OF THE RESPENDENT

 TABLE OF CONTENTS

Index of Authorities ..................................................................................................................iv

Statement of Facts ...................................................................................................................... v

Issues for Consideration ............................................................................................................. v

Summary of Arguments .......................................................................................................... vii

Arguments Advanced............................................................................................................. 8-7

Prayer for Relief.....8

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 STATEMENT OF JURISDICTION

The Counsel for the defendants most respectfully submits that this court has the requisite
jurisdiction under article 142 of Supreme Court.

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 INDEX OF AUTHORITIES

Statutory Provisions

S. 2, Indian Copyright Act, 1957

S. 14, Indian Copyright Act, 1957

S. 62, Indian Copyright Act, 1957

S. 2(d), Design Act, 2000

S. 20, Civil Procedure Code, 1908

Cases

Leyland v. Armstrong, [1986] 1 AC 577

Bonz group (pty) ltd. v. Cooks, [1994] 3 NZLR 216.

Hensher v. Restawhile Upholstery Ltd. [1976] AC 64

Merlet v Mothercare PLC [1986] RPC 115

Australia Pty Ltd. v. Hysport International Pty Ltd. (1998) 157 ALR 247

Associated Electronics V. Sharp Tools 1991 Mad 406

Drayton Controls v. Honeywell Controls, [1992] FSR 245.

3M Innovative Properties Company v. Venus Safety and Health Pvt. Ltd. , 2014(59) PTC

370.

eBay, Inc. v. MercExchange L.L.C 547 US 388 (2006).

Dhodha House v. SK Maingi (2006) 9 SCC 41

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 STATEMENT OF FACTS

It is respectfully submitted that in the present case

Twist of Fate, based in Delhi had a showroom in Jodhpur, Twist of Fate designed a new car,

tentatively titled Zoom SaDe and in early 2017 developed a full scale model/replica of the

design of the car. Last Ride, another car and motorcycle restoration company, based in

Mumbai, used the full scale model of the Zoom SaDe to build/reproduce the Zoom SaDe and

named it VenomFly. It started selling the VenomFly in Mumbai and Delhi. Twist of Fate filed

a suit against Last Ride in the District Court of Jodhpur. Perfect Plex is an electric car company

which owns several profitable patents in the electric automotive sector. Due to suffering several

losses in the past years, Perfect Plex has stopped manufacturing electric cars.Edge-o-Matic is

one such manufacturer that Perfect Plex has filed a suit against for patent infringement. In its

suit, Perfect Plex seeks an interim injunction against Edge-o-Matic

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 ISSUES FOR CONSIDERATION

I. WHETHER THE DISTRICT COURT DID HAVE THE JURISDICTION TO

DECIDE THE MATTER?

II. WHETHER THE MODEL/DESIGN OF THE CAR CAN BE PROTECTED

UNDER COPYRIGHT?

III. WHETHER THERE IS A COPYRIGHT INFRINGEMENT BY THE

APPELLANTS?

IV. WHETHER THE INJUNCTION CAN BE GRANTED AGAINST THE

DEFENDANTS FOR PATENT VIOLATION?

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 SUMMARY OF ARGUMENTS

I. The district court had the jurisdiction in the present matter as the defendants had a

showroom in Jodhpur, which can be considered as a place of business and could be

brought under the jurisdiction clause of Copyright Act.

II. The model and the design was protected under copyright as model being made from

the design could be given single copyright which can fall under the work of artistic

craftsmanship as the facts do not provide for any kind of evidence as to what was

the design intended for it could be for a design exhibition which would give value

to the work of art in itself and not for the fact that what will it be used for in the

later time. Lastly it is a question of fact determined from the evedences present.

III. There was a copyright infringement in the present matter as copying in any material

form is violating the exclusive right of the copyright holder and indirct copying also

amounts to infringement.

IV. The injunction cannot be granted in the patent case as it does not satisfy the four

factor test that is necessary for the grant of injunction.

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 ARGUMENTS ADVANCED

I. THE DISTRICT COURT DID HAVE THE JURISDICTION TO DECIDE

THE MATTER.

The jurisdiction has been rightly exercised in the present matter. S. 62 reads as follows:

Jurisdiction of court over matters arising under this Chapter.

(2) For the purpose of sub-section (1), and "district court having jurisdiction" shall,

notwithstanding anything contained in the Code of Civil Procedure, 1908, or any other law for

the time being in force, include a district court within the local limits of whose jurisdiction, at

the time of the institution of the suit or other proceeding, the person instituting the suit or other

proceeding or, where there are more than one such persons, any of them actually and

voluntarily resides or carries on business or personally works for gain.

S. 20(a) of the Code of Civil Procedure read with explanation clause gives similar effect to the

situation that a plaintiff may institute a suit in any competent court where he resides or carries

on business which includes any subordinate office of the corporation.

It is very clear from the section that the suit can be rightly instituted in a District Court if the

person instituting the suit resides there or carries on business.

In the present matter the Defendant had a showroom in Jodhpur which means that he had been

carrying on his business from Jodhpur and hence the District Court of Jodhpur has a competent

Court to hear the current matter.

II. THE MODEL/DESIGN OF THE IS PROTECTED UNDER COPYRIGHT.

The design and model in the present case constitute originality and give rise to single copyright.

Section 2(c) of the Copyright act defines artistic work as artistic work means,

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(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving

or a photograph, whether or not any such work possesses artistic quality;

(ii) a 4[work of architecture]; and 1[work of architecture]; and"

(iii) any other work of artistic craftsmanship;

The model and the design in the present case would constitute to be an artistic work under the

given section. The design and the model that has been later developed from the same design

can give rise to a single indivisible copyright. It has held that two skills maybe combined in a

single individual or in a single team working together and produce a drawing and an article

representing the drawing in a three dimensional form to constitute originality and give rise to

one indivisible copyright.1

Hence in the present matter it is not necessary that the design or the model/replica of the car

Zoon SaDe be seen in isolation but the drawing along with the model of the same can be taken

together and a single indivisible copyright can be granted for the same. The model made using

the drawing amounts to work of artistic craftsmanship.

The determination of the work of artistic craftsmanship depends on the facts of the case. 2

Secondly, no intention has been provided as to what was the intended use of the model. In

Coogi Australia Ltd v. Hysport International Pty,3 fabric with a highly textured surface

comprising a multi-coloured design with three dimensional elements was said to be a work of

artistic craftsmanship.

Now the present matter entails a model of a car design the specifics of which are not provided.

Now assuming that the model and the drawing had a particular design and a very fine artistic

1
Leyland v. Armstrong, [1986] 1 AC 577 at page 621.
2
Id at 84-85.
3
Australia Pty Ltd. v. Hysport International Pty Ltd. (1998) 157 ALR 247.

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drawing or some other form of handmade work on it, this would give rise to an artistic

craftsmanship.

If the work is artistic then it will be protected under copyright and not design. Under S. 2(d) of

the Design Act, 2000, a design does not include any artistic work defined under S. 2(c) of the

Indian Copyright Act, 1957. In the present matter the object in question falls within the

definition of artistic craftsmanship which is one of the expressions included under the definition

of Artistic work and hence will not come under the Design Act.

III. THE INJUNCTION CANNOT BE GRANTED AGAINST THE

DEFENDANTS FOR PATENT VIOLATION.

There is no patent violation in the present matter. The US Supreme Court in eBay, Inc. v.

MercExchange L.L.C.4 has set a two-factor test, followed in many Indian judgements,5

which a plaintiff must demonstrate in order to seek a permanent injunctive relief from the

court.A plaintiff must demonstrate

a. That it has suffered an irreparable injury.

The appellants in the present matter have not suffered irreparable injury as the

appellants have, due to the losses incurred stopped the manufacture of the

electric cars altogether. When the defendants used the technology it was when

the appellants have stopped using the technology to manufacture cars. Sitting

on a patent without using the patent, would be the abuse of patent rights which

is not the purpose of patents.

4
547 US 388 (2006).
5
3M Innovative Properties Company v. Venus Safety and Health Pvt. Ltd. , 2014(59) PTC
370.

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b. That remedies available at law, such as monetary damages, are inadequate to

compensate for that injury.

When the balance of hardships is seen, it is clear that due to an injunctions the

defendants are more likely suffer as the appellants are no longer in business and

no such damage had been made to them which will continue if the defendants

continue their manufacture of electric cars. Hence if at all any injury had taken

place for the defendants, it can be cured through other remedies available in

law.

c. That, considering the balance of hardships between the plaintiff and defendant,

a remedy in equity is warranted

Considerations of balance of hardships involve the fact that who will suffer

more if the injunction is in fact granted. In the present matter since the appellants

have already stopped using the patented technology and the manufacture of

electric cars they will not suffer any losses if any other manufacturing company

uses their technology. Patent rights are given to protect a certain innovation and

incentivise new innovations in technology. However, it will not be fair when

there is no actual use of patents and when someone else uses that technology

they are not allowed. If an injunction is allowed here the defendants will suffer

losses whereas, if the injunction is not allowed the appellants will not suffer any

losses at least not more than they already have.

d. That the public interest would not be disserved by a permanent injunction

If an injunction is granted, not only the defendants but the public at large will

suffer as they are being denied the use of a particular technology. Just because

one company stopped manufacturing the electric cars does not mean that they

cant get it from other company merely because the former company is in a

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position to stop the latter from manufacturing the electric cars because they have

the technology which they so not intend to use either. But they won't let the

others use it either. But they wont let the others use it either. This is will be

against the public interest as they are being denied the use of a certain product

just because the manufacturing company does not intend to manufacture a

product and they do not intent to share the patented technology used in the

product.

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 PRAYER FOR RELIEF

Wherefore, in the light of the facts stated, issues raised, arguments advanced and authorities

cited, it is prayed before this Honble Supreme Court of India, that it may be pleased to

1. Hold that the district court had the applicable jurisdiction and hold its verdict as

correct.

2. Hold that an injunction cannot be granted to the appalent.

Pass any such order that the Court may deem fit in the eyes of equity, justice and good

conscience.

All of which is most humbly and respectfully submitted

Place: Jodhpur Respondents

Dated: 16th april,2017

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