IN THE HIGH COURT OF DELHI AT NEW DELHI
I.A. 7326/2007 in CS (OS) 1189/2007

01.07.2008


Reserved on: 4th March 2008
Date of decision: 1st July 2008

DR. RECKEWEG and CO. Gmbh. and Anr.
.... Plaintiffs
Through Mr. : Amit Sibal, Mr.
Gaurav Mitra, Advocates


versus

M/S. ADVEN BIOTECH PVT. LTD.
..... Defendant
Through Mr. Kiran Suri, Mr. Harish Arora,
Mr. Purvesh, Advocates
CORAM:
Mr. Justice S. Ravindra Bhat:
1. Whether reporters of local papers may be
allowed to see the judgment.? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported
in the Digest? Yes

Mr. Justice S. Ravindra Bhat:

1. This order will dispose off IA No. 7326 of 2007, by which the
plaintiff seeks an ad-interim order to restrain the defendants from passing off
and infringing the plaintiff?s copyright, by using the identification numbers in


respect of homeopathic medicines that are claimed to be deceptively similar to
the plaintiffs? marks.
2. The facts relevant for the present purposes are as follows. The first
Plaintiff is a company incorporated under the laws of Federal Republic of
Germany, having its office at Berliner Ring 32, D-64625, Bensheim, Germany. It
is manufactures and markets homoeopathic medicines for the past sixty years. The
plaintiff?s medicines are sold in forty countries across the globe; they have
been sold in India since 1980. The second Plaintiff is a company registered
under the Companies Act, 1956 and is engaged in the distribution and marketing
of the first Plaintiff?s homeopathic formulations in India.
3. The Plaintiffs claim to have been manufacturing Homoeopathic
Specialties known as R-Series in Germany for the past 60 years and that these
have been recognized for their high efficacy and unique composition. They also
allege that while preparing the Homeopathic Specialties apart from good
manufacturing practices (GMP), national and international production guidelines
are taken into consideration and they are prepared strictly following the German
Homoeopathic Pharmacopoeia. It is further averred that the medicines are
manufactured for different diseases and ailments, and were numbered initially as
R 1 to R 75 and subsequently R 76 to R95 were added. The letter ?R? is derived
from Dr. Reckeweg, the founder promoter of ?Dr. Reckeweg and Co. GMBH, Germany
and the numerals 1,2,3 and so on indicate specialties of the medicinal
formulations of the first Plaintiff. They aver that the numbering proceeded
proportionally to the number of medicines manufactured to combat emerging
diseases. Since the first Plaintiff administers strict and vigorous quality
control, the R- Series with unique composition of ingredients, formulated after
years of research and clinical efforts, it is submitted, generated much goodwill
and reputation. These specialties R -1 to R-75 have been registered in the
country of origin since 1978 and have the registration number indicated on the
container itself. Relying upon the sales figures and figures relating to the
expenditure on the promotion of the brand the Plaintiffs submit that there has
been tremendous growth use and consumption resulting in ever increasing business
of R-series of medicines.
4. The plaintiffs state that the R Series code is displayed on packaging
containing homeopathic specialties and also on points of sale of those
medicines. These have been used in India extensively since the year 1980. They
also aver that the efficacy and consequent acceptability of these medicines is
such that mere mention of letter ?R? in conjunction with the requisite numeral
is considered as the first plaintiff?s product. The first plaintiff is also the
owner of the following copyrights of the literary works pertaining to the
homeopathy.
(i) 'Homeopathy for total and safe cure 1-75' bearing No. L-18275/99,
first published in India in 1982 and L-18357/99.

(ii) Homeopathic Specialties bearing L-18231 first published in India in
1982.

(iii) 75 Vishist Homeopathic Aushdhyan bearing No.18356/99 first published
in 1982 (in Hindi)
(iv) 90 Homeopathic Specialities bearing L-18226/99 first published in
India in 1982.
(v) 90 Vishist Homeopathic Aushdhyan bearing no.18355/99 first published
in 1982 Hindi.

Apart from these, the plaintiffs also claim to have prepared and developed
catalogues in English, Hindi and Bangla in relation to the R series of
medicines, circulated free of cost in order to guide the intermediary stockists,
practioners and users. In this regard the plaintiffs have placed on record


copies of the registration certificates. They also aver as to the legal actions
pursued by them in respect of their rights in R-series.
5. It is averred that on 28th June 2007 the plaintiffs noticed that the
defendants were marketing homeopathic medicines under the alpha numeric series
deceptively similar to the plaintiffs, as A-1 to A-75. It is submitted that
though the products were launched formally, commercial distribution of the same
had not commenced. It is alleged that not only did the defendants completely
copy the alpha numeric series and corresponding ailment clearly indicated on
each products but they also copied a substantial portion of the
literature/catalogue which gives the unique composition and description of the
homeopathic products amounting to brazen violation of Trade Marks Act and also
that of Copyright Act. It is submitted that copies Series A-1 to A-75 are
confusingly and deceptively similar to that of the plaintiffs as merely
prefixing the letter ?A? in place of letter ?R? does not make them distinctive
from the R series of the plaintiffs. They allege that the use of exactly the
same numerals by the defendants for curing the same ailment, adopted by the
plaintiffs and further circulation of exact copied literature for A ? Series is
a calculated attempt to trade upon and cash on the plaintiff?s goodwill. They
further allege that the defendants? dishonesty is established by the fact that
since the homeopathic medicine of plaintiffs R-61 is not marketed in India
(although sold in other countries of the world), the defendants also missed the
medicine A-61 in their range, which is proof of blatant copying.
6. The Plaintiffs aver about the defendant?s malafide intention, evident
from the fact that the ailment cured by the defendants medicine labeled as A1
corresponds to the ailment in relation to the plaintiff?s R1, and so on.
Moreover, the mistakes committed by the plaintiff in spelling the description of
its medicine labeled as R 29 and R 47 is also identically copied by the
defendants in naming its medicines labeled as A 29 and A 47. Further, almost all
names given by the defendants to its homeopathic medicines are identical to the
names given by the plaintiff in its products or in its literature in the current
edition.
7. The plaintiffs submitted a chart comparing the terms used by them and
the defendants in their products and literature, parts of which are extracted
below (?A? series being that of the defendants and ?R? series being of the
plaintiff:

Compilation of Medicines with Potencies
Ailment
Curative Effect Compilation
A1
Apis Mell, 4X, Bar. Chlor. 6X, Belladonna 4X, Calc. lod. 4X, Hepar Sulph 12X,
Kali. Bich 4X, Teurium Marum Virum 6X, Mer. Corr. 5X, Phytolacca 4X
Inflammation Drops
Acute and Chronic inflammations.
R1
Apis Mell, 4X, Bar. Chlor. 6X, Belladonna 4X, Calc. lod. 4S Marum verum 6X, Mer.
Sub. Corr. 5X, Phytolacca 4X
Inflammation Drops
Local Inflamations, acture and chornic, of catarrhal and purulent nature, with
swelling of the glands. Sudden infections and high fever, with irritations of
the meninges, conjunctivas and pharynx.
A4
Acidum Phos. 3X, Baptisia Tinctoria 4X, Chamomilla 4X, Chin. Ars. 3X,
Colocynthis 6X Ferrum Phos. 8X, Mer. Corr. 5X Oleander 6X, Rhus Tox. 4X,
Veratrum Album 6X
Diarrhoea Drops
Acute and chronic Gastro-colitis.




R4
Acidum Phos. 3X, Baptisia 4X Chamomilla 4X, Chin. Ars. 3 X Colocynthis 6X,
Ferrum Phos, 8X Mer. Subl. Corr. 5X, Oleander 6X, Rhus Tox,l 4X, Veratrum Album
6X
Diarrhoea Drops
Acute and chronic gastro ?enterocolitis of all types. Summer diarrhea after a
chill or faulty diet. Intestinal catarrh, intestinal influenza, diarrhea with
fever, abdominal typhus, paratyphus, typhoid fever, dysentery.
A5
Anacardium Occ. 6X, Argentum Nit, 6X, Arsenicum Alb. 4X, Atropinum 6X, Carbo
Veg. 8X, Chamomilla 2X, Chelidonium Maj. 3X, Lycopodium 5X, Nux Vomica 4X,
Scrop. Nod. 1X
Stomach Drops
Acute and chronic gastritis Heartburn, flatulence.
R5
Anacardium 6X, Argentum Nit, 6X, Arsenicum Alb. 4X, Atropinum 6X, Carbo Veg. 8X,
Chamomilla 2X, Chelidonium Maj. 3X, Lycopodium 5X, Nux Vomica 4X, Scrop. Nod. 1X
Stomach Drops
Especially ulcus parapyloricum. Acute and chronic gastritis, dyspepsia, chronic
relapsing gastritis with or without ulceration. Heartburn, bad taste in mouth,
frequent belching, flatulence meteorism. Acts on the inflamed mucosa of stomach,
on the physiology of stomach.
A6
Baptisia Tinctoria 4X, Bryonia Alba 4X, Camphora 3X, Causticum 6 X, Eucalyptus
G. 3X Eupatorium Perf. 3X, Ferrum Phos. 8X, Gelsemium Sempervirens 6X, Sabadilla
6X
Influenza Drops
Especially influenza and Acute feverish inflammations of the fibrous tissues.

R6
Baptisia Tinctoria 4X, Bryonia Alba 4X, Camphora 3X, Causticum 6 X, Eucalyptus
G. 3X Eupatorium Perf. 3X, Ferrum Phos. 8X, Gelsemium Sempervirens 6X, Sabadilla
6X
Influenza Drops
Specific serous remedy, especially influenza. Acute feverish inflammations of
the fibrous tissues and the serous membrances. General infection with pain in
the limps, sensation of prostr4ation, dull head-aches, restlessness. Dry and
burning skin, acute pains. Feverish catarrh of the mucosa of the upper air-
passages, rhnopharyngitis, influenza bronchitis, pneumonia, inflammation of the
serous membranes, pleurisy, pericarditis, peritonitis, irritation of the
peritoneum during inflammatory process of the abdominal organs.
A9
Belladonna 4X, Bryonia Alba 3X Coccus. Cacti 6X, Corallium Rub. 12X, Cup. Acet.
12X, Drosera Rot. 4X, Ipecacuanha 6X, Spongia Tosta 6X, Sticta pulmonaria 4X,
Thymus vulgaris A.
Cough Drops
Effective expectorant in chronic bronchitis, whooping cough at all stages.
R9
Belladonna 4X, Bryonia Alba 3X Coccus. Cacti 6X, Corallium Rub. 12X, Cup. Acet.
12X, Drosera Rot. 4X, Ipecacuanha 6X, Spongia Tosta 6X, Sticta pulmonaria 4X,
Thymus vulgaris A.
Cough Drops
Catarrhal affections of the upper air passages. Rhinolaryngopharyngitis,
especially bronchitis and whooping cough at all stages. Effective expectorant in
chronic bronchitis, bronchial asthma, fits of coughing in phthisis.


A22
Grindellia robusta 4X Naja Tripudians 12X Lachesis 12X
Cardiopulmonary Drops
Nervous disturbances, oppression and suffocation, following flatulence. Anginous
condition of the heart.
R22
Grindellia robusta 4X Naja Tripudians 12X Lachesis 12X
Drps for Nervous Disorders
Nervous disturbances, oppression and suffocation, following flatulence. Anginous
condition of the heart.


A23
Apis Mell 30X Ars. Album 30X Rhus Toxicodendron 30X
Skin Drops
Acute and chronic eczema, pimples, herpes, rashes, eschar.
R23
Apis Mell 30X Ars. Album 30X Rhus Toxicodendron 30X
Eczema Drops
Acute and chronic eczema, pimples, herpes, rashes, eschar.

8. The plaintiffs next allege the defendants have violated their copyright
in literary works when they reproduced unique compositions of their medicines,
since they hold proprietary rights in such formulations by virtue of the
registered copyright in the literature. In view of the above the plaintiffs
seek an order restraining the defendants from passing off their products as
those of the plaintiffs? and also for restraining the defendants from infringing
their copyright. plaintiffs in their literature.
9. Mr. Amit Sibal, learned counsel appearing on behalf of the plaintiff
contended that dishonest practices of the defendants in copying the omissions
and also mistakes in the series as well as the description of the medicines,
prove beyond doubt that they seek to pass of their goods as that of the
plaintiffs and are liable for passing off. Given that the case at hand involved
medicinal preparations, he relied upon the judgment in Cadila Health Care v.
Cadila Pharmaceuticals, (2001) 5 SCC 73 to assert that since the defendants
products were deceptively similar to that of the plaintiffs, injunction must be
granted. He further argued that the plaintiffs? copyright in relation to four
elements, that is the alpha numeric used, the medicinal formulation along with
the respective potencies, description of the ailment and its curative effect
compilation have been violated. Placing reliance on the decision reported as
Burglington Home Shopping Pvt. Ltd., Vs. Rajniah Chibber PTC (15) 1995 279, he
argued that the compilation of the ailments and medicines in a particular
manner, in ascending numeric sequence (R-1, R-2. R-3, etc), by expending time,
money, labour and skill amounts to a ?literary work? in which copyright
subsists. Further reliance was placed on Himalaya Drug Company Vs. Sumit 2006
(32) PTC 112 (Del) to show that copyright vests in database of herbs. Similarly,
reliance was also placed on Shyam Lal Paharia v. Gaya Prasad Gupta, AIR 1971 All
192 to argue that a compilation made from a common source falls within the ambit
of literary work.
10. At the very outset the defendants draw the attention of this Court to
the order dated 4th January 2002 in Dr. Reckweg Vs. Dr. Wellnan Laboratories,
2002 (25) PTC 98(Del) where this court refused to injunct defendants from using
WR 1, WR 2 and so on, as a alpha numeric series, in a similar action brought by
the plaintiff. They contended that the court there concluded that no case of
passing off was made of in relation to R 1 series and WR 1 series. They allege
that the plaintiffs willfully did not disclose this order to the Court. The
defendants next submit they have obtained the necessary approval from the


controller of Drugs to market their products. They submit that the plaintiffs
products could not be granted protection under the Patents Act due to operation
of Section 3 which states that any process of medical treatment of human beings
is not patentable. Therefore, they argue that what protection to the formulation
of the medicines cannot be given under patent law, cannot be indirectly given
under the law of copyright. However, they claim that the compositions and
formulation of the medicines are not exclusive to the plaintiffs. These
compositions of medicines are found, according to defendants in various
Homeopathic Pharmocoepia including the Homeopathic Pharmocoepia of India, the
United States Homeopathic Pharmocoepia and the German Homeopathic Pharmocoepia

11. The defendants allege that from June 1997 the plaintiffs changed in
their labels, and the names of their medicines. They added to the names, words
which are used in common parlance to describe the ailment or its symptoms
(hereafter ?description?). They allege that this amounts to appropriation of
phrases which are publici juris and therefore, no copyright can be claimed on
them. They aver the following examples :
Formulation/series Description
(1) Gripfekton for R-6 to Gripfekton ? Influenza drops for R-6
(2) Prabhaemorrhin for R-13 to Prahaemorrhin ? Hemorrhoidal drops for R-13
(3) Cobralactin for R-17 to Corbralactin ? Tumour drops for R-17
(4) Fortivirone for R-41 to Fortivirone ? Sexual neurasthenia drops for R-
41
(5) Laryngin for R-45 to Laryngin ? Illness of the Larynx for R-45
(6) Rhinopulsan for R-49 to Rhinopulsan? Acute and Chornic Catarrh,
sinusitis for R-49

Further, the defendants claim that the plaintiffs have deliberately not drawn
the attention of this court to the fact that apart from using the alpha numeric
series, they also used names to which these common phrases were added. These
names were never copied by the defendant. Therefore, they submit the plaintiffs
have not made out a case for violation of copyright or passing off.
The Trademark Claim
12. The issue of passing off will be addressed first. The law of passing
off seeks to protect the goodwill of the proprietor, from being dishonestly
appropriated by others. In that sense, the principles of the law relating to
passing off can be applied only in relation to the shape, configuration, get-up
etc of the product and does not extend to any literature in relat6ion to the
products. The law relating to passing off an grant of injunction have been
fairly well settled through the pronouncements in Ruston and Hornsby v.
Zamindara Engineering Co, (1969) 2 SCC 727, Parle Products v. JP and Co., AIR
1972 SC 1359, Amritdhara Pharmacy v. Satya Deo Gupta, AIR 1963 SC 449, Heinz
Italia v. Dabur India (2007) 6 SCC 1 and Cadila Health Care v. Cadila
Pharmaceuticals, (2001) 5 SCC 73. It has been consistently held that injunction
can be granted only if the marks are identical and deceptively similar, so as to
cause confusion in the minds of the public. The Supreme Court has also ruled
that to ascertain whether a mark in deceptively similar, one must look at it as
a whole and not in distinct parts. The Court has further laid down that the
broad and essential features of the marks will have to be compared with a focus
on similarities rather than dissimilarities.

13. Now, the alphabet ?R? in the series used by the plaintiff is quite
distinct from the ?A? used by the defendants in its series ? both visually and
phonetically. The essential feature of the plaintiffs? mark ?R?, (which stands
for Reckeweg) does not find a place in the defendants mark. The colour scheme
and ?get up? of the two marks are also entirely different. The alphanumeric
series is not registered. In cases relating to passing off, the standard to be


adopted is that of deceptive similarity. The test is whether keeping both makes
together, an unwary customer would believe that the defendant?s products are
associated with the plaintiff. Here the plaintiff?s mark, i.e., the individual
alphanumeric series are printed in colours such as Red, Green, Yellow and Blue,
of distinctive shades. The plaintiff?s name is displayed prominently. The
defendant?s alpha-numerals are entirely different; their labels are printed
vertically ? the plaintiff?s being horizontal. Most importantly, there is no
similarity in the typesetting, and colour scheme. The defendant?s alpha-numeral
descriptions are all set out, without exception in green ?drop? background ?
entirely dissimilar to the plaintiff?s. The defendant?s name is displayed
prominently, on the packaging. Therefore, it can be gleaned that an average,
unwary consumer will not associate the defendants? products to the plaintiff,
and no immediate cause in relation to passing off is made out.
The copyright claim
15. The plaintiffs have claimed violation of copyright in relation to the
entirety of their relevant literature. A close look at the pleadings will reveal
that copyright has been pleaded only in relation to their products. Nevertheless
the Court proposes to deal with the issue of copyright in relation to the
nomenclature of drugs, the listing of the medicines in a particular fashion, the
description and the curative effect compilation.
16. The exposition of law, through various decisions in India and abroad
has established that the law copyright affords protection only to the expression
of the idea and not to the idea as such. That is to say, the law protects the
method and manner in which the idea is conveyed to others. But every such manner
or method of presentation of an idea is not copyrightable. The law requires that
only those expressions that are fixed in a medium and are original can be
protected under copyright law. In India Section 13 of the Copyright Act states
that only original literary, artistic, dramatic and musical works can be subject
matter of copyright. A literary work in order to qualify as work in which
copyright can subsist, must be original.
17. Originality, then, forms the crux of this case. The Copyright Act does
not define ?originality? and therefore, judicial decisions have to be looked
into. In University of London Press Ltd. Vs. University Tutorial Press Ltd.,
(1916) 2 Ch 601, the Court (in the context of originality of question papers in
a University examination) laid down that originality meant not originality of
thought, but originality of skill and labour. Therefore, if the person or author
had expended money, labour and skill, the work was considered original, worthy
of protection. This standard later came to be known as the ?sweat of the brow?
doctrine. The court was guided by the principle that ?what is worth copying is
prima facie worth protection?. In relation to compilations and lists, the
English law largely was that so long the sweat of the brow doctrine was
satisfied and the complication conveyed meaningful information, copyright should
be granted. This principle was followed in British Broadcasting Co. Vs. Wireless
League (1926) Ch. 433, (copyright on broadcasting schedules), Exchange Telegraph
Co. Ltd., Vs. Gregory and Co. (1896) 1 QB 147 (Stock exchange prices) Payer
Components South Africa Ltd., Vs. Boris Gaskets ( 1996) 33 IPR 406 etc. This
view was followed in India also in Burlington Home Shopping Pvt. Ltd., Vs.
Rajnish Chibber (Supra) where a list of customers developed by devoting time,
labour money and skill was held to a work in which copyright subsists. A similar
view was also taken in Shyam Lal Vs. Gaya Prasad (Supra).
18. However, there were a few decisions that held that mere selection did
not confer originality and in order to get protection additional skill was
necessary. (Cramp Vs. Sraythson, (1994) AC 329). The position taken by the
Supreme Court of the United States has been enlightening in this regard, and in
a sense, broke new ground about what is expression worthy of protection; what is
?literary? work. In Fiest Publication Inc. Vs. Rural Telephone Service, 199 US
340 (1991) the question whether copyright protection could be granted to a list


of phone numbers and its users, was considered. The US Supreme Court held that a
merely expending time, energy and labour would not be sufficient to grant
copyright. Rejecting the ?Sweat of the brow? doctrine, the Court ruled that the
doctrine flouted basic copyright principles and it creates a monopoly in public
domain without the necessary justification of protecting and encouraging the
creation of writings by authors. The Court observed that:
The ?sweat of the brow? doctrine had numerous flaws, the most glaring being that
it extended copyright protection in a compilation beyond selection and
arrangement -- the compiler's original contributions -- to the facts themselves.
Under the doctrine, the only defense to infringement was independent creation. A
subsequent compiler was not entitled to take one word of information previously
published, but rather had to independently work out the matter for himself, so
as to arrive at the same result from the same common sources of information.?
(internal quotes omitted)
The Court further held that a work, in order to be called original must contain
at least a ?Modicum of creativity?. In that sense there must be intellectual
originality and creativity. The level of such creativity, of course, would vary
from case to case to render the work copyrightable. It noted that:
??the originality requirement is not particularly stringent. A compiler may
settle upon a selection or arrangement that others have used; novelty is not
required. Originality requires only that the author make the selection or
arrangement independently (i. e., without copying that selection or arrangement
from another work), and that it display some minimal level of creativity.
Presumably, the vast majority of compilations will pass this test, but not all
will. There remains a narrow category of works in which the creative spark is
utterly lacking or so trivial as to be virtually nonexistent?. Such works are
incapable of sustaining a valid copyright.?
Dealing with the question of copyright in compilations, the Court held that
there could be no copyright on facts, which form the compilation, but only on
the arrangement of those facts, if a minimal level of creativity could be
established. Similarly, copyright could subsist on the manner of expression of
facts only if such modicum of creativity were established. In this regard, the
court observed:
?To this end, copyright assures authors the right to their original expression,
but encourages others to build freely upon the ideas and information conveyed by
a work. This principle, known as the idea-expression or fact-expression
dichotomy, applies to all works of authorship. As applied to a factual
compilation, assuming the absence of original written expression, only the
compiler's selection and arrangement may be protected; the raw facts may be
copied at will. This result is neither unfair nor unfortunate. It is the means
by which copyright advances the progress of science and art.? (internal quotes
omitted)
These principles were applied in a number of judgments to determine the
copyrightability of compilations, including BUC Int?l Corp. v. Int?l Yacht
Council Ltd., 489 F.3d 1129 (11th Cir. 2007).

19. The legal position in Canada too could be discussed in this regard.
In Tele Direct Inc. v. American Business Information Inc (1997) 76 C.P.R. (3d)
296 (F.C.A.), the Court of Appeals observed as follows:
?Essentially, for a compilation of data to be original, it must be a work that
was independently created by the author and which displays at least a minimal
degree of skill, judgment and labour in its overall selection or arrangement.
The threshold is low, but it does exist. If it were otherwise, all types of
selections or arrangements would automatically qualify, for they all imply some
degree of intellectual effort, and yet the Act is clear: only those works which
are original are protected. There can therefore be compilations that do not meet
the test.?



The Supreme Court of Canada was, however, of the opinion that the real test of
originality falls in between the extreme positions taken in the United Kingdom
and United States. In CCH Canadian Ltd., Vs. Law Society of Upper Canada (2004)
SCC 13, held that:
?For a work to be ?original? within the meaning of the Copyright Act, it must be
more than a mere copy of another work.? At the same time, it need not be
creative, in the sense of being novel or unique.? What is required to attract
copyright protection in the expression of an idea is an exercise of skill and
judgment.? By skill, I mean the use of one?s knowledge, developed aptitude or
practised ability in producing the work.? By judgment, I mean the use of one?s
capacity for discernment or ability to form an opinion or evaluation by
comparing different possible options in producing the work. This exercise of
skill and judgment will necessarily involve intellectual effort. The exercise of
skill and judgment required to produce the work must not be so trivial that it
could be characterized as a purely mechanical exercise.? For example, any skill
and judgment that might be involved in simply changing the font of a work to
produce ?another? work would be too trivial to merit copyright protection as an
?original? work. ?While creative works will by definition be ?original and
covered by copyright, creativity is not required to make a work original.?
In describing the standard evolved by it as a workable, yet, fair standard it
observed that:
?The ?sweat of the brow? approach to originality is too low a standard.? It
shifts the balance of copyright protection too far in favour of the owner?s
rights, and fails to allow copyright to protect the public?s interest in
maximizing the production and dissemination of intellectual works.? On the other
hand, the creativity standard of originality is too high.? A creativity standard
implies that something must be novel or non-obvious ? concepts more properly
associated with patent law than copyright law.? By way of contrast, a standard
requiring the exercise of skill and judgment in the production of a work avoids
these difficulties and provides a workable and appropriate standard for
copyright protection that is consistent with the policy objectives of the
Copyright Act.??

20. This shift in trend of copyright law in the United States and Canada
was noted by the Supreme Court in Eastern Book Company v. DB Modak, (2008) 1 SCC
1. The Court in the context of evaluating the copyrightabliity in the reporting
of the judicial judgments and orders, held that mere skill, labour and time
expended will not qualify a work for copyright protection. It held that work
must be original
?in the sense that by virtue of selection, co-ordination or arrangement of pre-
existing data contained in the work, a work somewhat different in character is
produced by the author?.
21. Our Supreme Court had the benefit of the two judgments of the United
States Supreme Court and the Supreme Court of Canada. It noticed the original
?sweat of the brow? doctrine and the low threshold of originality required for
copyright protection. The Fiest Publication standard of ?modicum of creativity?
too was noticed, as well as the impracticality of continuing with the sweat of
the brow test. The court then noted the Canadian solution, i.e ?exercise of
skill and judgment in the production of a work?. It is enlightening to note that
our Supreme Court noted that the two positions i.e the sweat of the brow on the
one hand, and ?modicum of creativity? were extreme positions; it preferred a
higher threshold than the doctrine of ?sweat of the brow? but not as high as
?modicum of creativity?. Significantly the court then emphasized that the
product, or the expression, in compilations, etc should be a ?work somewhat
different in character.. produced by the author? to qualify for copyright
protection. Thus, our law too has recognized this shift, and mandates that not


every effort or industry, or expending of skill, results in copyrightable work,
but only those which create works that are somewhat different in character,
involve some intellectual effort, and involve a certain degree of creativity.
21. This being the position, it is now necessary to apply those principles
in this case. First, the claim of copyright in relation to the nomenclature of
the drugs in the series R1, R2 etc. ?R? is a part of the English Alphabet and
the other part of the nomenclature is in the ascending order of the Hindu-Arabic
numerals. It is an established proposition of law that names and titles, in
the normal course, until it has qualities and characteristics of original
creative work, cannot be afforded copyright protection. Thus, ?Dr. Martens? (R.
Griggs Groups Ltd., Vs. Evans (2003) EWHC 2914 (Ch), ?Splendid Misery? (Dick Vs.
Yates (1881) LR 18 Ch. D 76) and ?The Lawyers Diary 1986? (Rose Vs. Information
Services (1978) FSR 254) were denied copyright protection expressing that doing
so would lead to conferring monopoly on part of the English Language. Such use
of alphanumeric series does not reveal any amount of creativity nor have the
plaintiffs been able to demonstrate exercise of skill and judgment, as laid down
in CCH Canadian. Therefore, no copyright can be granted on the nomenclature of
the drugs as the R 1 series.
22. The plaintiffs have also claimed copyright in the medicinal
formulation of their products. It is their admitted case, that they prepare
their medicines as per the directions in the German Homeopathic Pharmocoepia.
The chemical formulation of a medicine is mere information. As has been in the
aforesaid cases, no person can claim copyright in mere information or an idea.
That is so, because no person can claim authorship over facts or information,
they can claim authorship only over expressions. If such claim over the
formulation were to be endorsed, it would indirectly amount to granting them a
right over the medicine itself, a right expressly unavailable under patent law
to the plaintiffs. In Baker v. Seldon, 101 US 99 (1879), the US Supreme Court
observed that
?To give to the author of the book an exclusive property in the art described
therein, when no examination of its novelty has ever been officially made, would
be a surprise and a fraud upon the public.?
Conceding the plaintiff?s claim would mean that what could not be achieved for a
narrower right (in point of time, i.e patent) would be granted for a greater
length of time (copyright) without an examination of its inventive step. That,
plainly is not possible under any legal regime. Therefore, the claim to
copyright in the scientific formulation of the products will have to be
rejected.
23. The claim of copyright on the curative element compilation comes next.
The plaintiffs allege that the exhibition of the curative element compilation on
the products by the defendants and also in their brochure violates their
copyright in their brochure and literature. These curative element compilations
employ certain medical and common terminology to convey what problems the
medicines would cure. Again, the plaintiffs have failed to demonstrate how they
have employed any skill, judgment and labour in describing the curative
elements, let alone any creativity. There are certain ways in which such
curative elements can be described and the present one is fairly common,
employing standard terminology. In the absence of any additional averment as to
the uniqueness of such description or intellectual creativity, this court is of
the opinion that prima facie no copyright can subsist in the curative element
compilation. Further, the plaintiff claims copyright on the description of the
medicines. As has been averred by the defendant, the plaintiff used technical
terms to describe the medicines and in June 1997 added phrases, commonly
employed to further explain the nature of the medicines. Thus, ?Anginacid? after
June 1997 became ?Anginacid- Inflammation drops?. From the documents, it can be
easily gleaned that the defendant uses only the second part of the description ?
that which is commonly employed not merely in Homoeopathic medicines but also in


other systems. The plaintiffs object to this use; and say that the defendants
cannot ?appropriate? such titles and must use other descriptions. For example,
it is contended that the plaintiff?s ?cough drops? description cannot be copied
and the defendants can use alternatives such as ?expectorant drops?. As noticed
earlier, common conditions can be described or expressed only in a few well
known ways. To say that the plaintiffs can claim protection of such common words
would be to allow them to appropriate stretches of the language. Applying the
logic pressed by the plaintiffs, whoever wishes to market similar products which
are part of common lore, have to use different expressions; for instance in the
case of ?fever? one would have to resort to ?high temperature?; and so on, so
that the third or fourth trader in the market, entitled to legitimately sell his
common products would yet be unable to describe the therapeutic properties or
values. Here, further, no proof intellectual creativity or skill expended has
been shown to satisfy the test indicated by the Supreme Court.

24. Most crucial among the claims of the plaintiff, is the one relating
to the copyright over the sequencing of the medicines in a particular order. As
stated above the plaintiffs manufacture their products as per the directions in
the German Homeopathic Pharmocoepia. Therefore, being a derivative work, in the
sense, of being a collection or sequencing of already existing information, the
standard of creativity required to qualify as a work in which copyright subsists
is higher than the standard required in cases of primary works. The plaintiffs
have not specifically averred as to the manner in which the sequencing was done
and the technique or criteria employed to place the medicines in that particular
sequence. On the other hand they aver as to how, the list expands numerically
as and when they discover or market a new medicine. In the plaint they state
that:
? These numerals are going up over a period of time as the number of specialties
are increasing to combat more and more emerging diseases. For example, there
were specialties from R-1 to R-75 initially and later, R ?76 to R-95 were added
subsequently.?
In the absence of any specific pleading in relation to the originality of the
sequence, their claim to copyright in this regard too has to fail.
25. Lastly, the claim of copyright in relation to the literature of the
plaintiff. That literature of the plaintiff is in fact a compilation of the
names, the series of the medicines, its curative elements etc, which, as has
been held above are not individually capable of being protected under copyright
law. The brochure of the defendants, which the plaintiffs allege has infringed
their copyright, only enlists the series, the names of the medicines and the
curative effects- all three components on which no copyright can be claimed. The
defendants have not copied the plaintiffs? literature in its entirety. It is
true, that the defendants have copied some of the mistakes and omissions of the
plaintiff committed in its literature. But law does not remedy every act of
copying. Therefore, even if it were assumed that the literature of the
plaintiffs, considered as a whole and not in parts, were capable of copyright
protection, as has been held in Dr. Recekeweg and Ors v. SM Sharma 130 (2006)
DLT 16, copying of individual factors, themselves not capable of copyright
protection because of lack of creativity, cannot result in the grant of an
injunction.
26. The plaintiffs? reliance on the judgment in Dr. Recekeweg and Ors v.
SM Sharma 130 (supra) is of no avail. No doubt, the court felt persuaded to
grant injunction in respect of the alphanumeric series, which is also part of
the present claim. The order is an interim order, and cannot be given the same
precedential deference as in the case of a final judgment, rendered after
considering all evidence and contentions. The court felt that an overall
consideration, of the infringing copy was called for, without considering the
individual elements. While that is no doubt a relevant consideration, it is not


the only or predominant test. The court has, where several components of
copyright protection are claimed, examine each of them, and also the impact of
protection of each (or denial of each) on the whole, while assessing the impact
of the ?overall? assessment. Assessments are usually fact sensitive. Thus, in
plain compilations, the author may not claim any copyright in the individual
entries, but claim on the list itself. However, here the alphanumeric series,
the sequence, the description, the formulation and the literature are all
subject of claims; at least arguments were addressed in that regard. The court
has rejected them all in the preceding paragraphs. Therefore, merely considering
the overall effect would be falling back to the ?sweat of the brow? standard, in
this case, which recognized that what is worth copying is copyrightable. That
era has passed; the Supreme Court has mandated a different standard, the scale
of which is to be determined on a case sensitive basis, i.e some modicum of
creativity.
27. In the light of the above conclusions, it is held that the plaintiffs?
claims about the defendants violating its copyright by publishing brochures, is
also prima facie without basis. For the above reasons, the application must
fail; it is accordingly dismissed.
(S. RAVINDRA BHAT)
JUDGE

Dated : 1st July, 2008