ORDER : Dr. G. Jayachandran, J. 1. Suit filed under the Copyright Act, 1957 for injunction against the defendant, not to use the registered artistic work of the plaintiff pertaining to their flag and logo. The plaintiff is a non political organisation. Whereas, the defendant is a registered political party. The flag which is the subject matter of this suit is the depiction of Red-white-Red colour combination in equal portion in rectangular shape. 2. Plaint averment in brief: The plaintiff is a society registered under the Tamil Nadu Society Registration Act on 11/05/2008. For the purpose of educating the Christian community about the thrust on constitutional vision for a secular and egalitarian society in India, especially in the context of Tamil Nadu, the plaintiff society, was formed with non-political, secular objectives. Flag (Rectangular in size; divided into three equal parts; Upper and Lower parts in Red colour and middle part in white colour) and the logo a burning lamp with the words 'irul ethirthu oli valarpoom' of the society was designed to reflect the goals of the plaintiff society and launched on 11/05/2008, which was the "Pentecost Sunday", the foundation day of the entire church. Before the launch of the society, the Bishops issued pastoral letters in March, 2008 to all churches to make use of the flag and logo in all the public functions. On 11/05/2008, the launching of the society with hoisting of flag ceremony was held from Chennai to Kanhiyakumari in various villages and towns. 3. The society applied for registration of copyright of the artistic work in the flag and the logo and it was duly registered by the Registrar of Copyrights, New Delhi on 15/10/2010 under registration No. A/89135/2010 (Logo LAMP) and in registration No. A/89136/2010 (depiction of FLAG). The registration is valid and subsisting. The plaintiff society is conducting programmes like distribution of notebooks, school uniforms and dress materials for poor; blood donation; distribution of scholarship and loans for the minorities under the banner of its flag and logo. This flag is used by Christians on the occasion of the marriages, family functions, school functions," sports events, condolence and feasts. 4. While so, the defendant, a political party has started using the flag of the plaintiff depicting the red-white-red colour combination. It is nothing but copycat of the geometrical shape and colour of the plaintiff's flag. This flag is used by Christians on the occasion of the marriages, family functions, school functions," sports events, condolence and feasts. 4. While so, the defendant, a political party has started using the flag of the plaintiff depicting the red-white-red colour combination. It is nothing but copycat of the geometrical shape and colour of the plaintiff's flag. The defendant action in so copying outright the original registered artistic work belonging to the plaintiff is only to gain political mileage out of the social and charitable works carried out by the plaintiff over the years and goodwill enjoyed by the services of the plaintiff society and the services of the Christian community represented by the plaintiff. The act of the defendant is deceitful and is calculated to indulge in creating confusion and deception to lure the members of the public by using the flag and logo of the plaintiff. The defendant's infringement of the flag and logo of the plaintiff has the potential of exposing the Christian community, to political violence. The members of the plaintiff society apprehend unnecessary trouble due to the infringement and passing off of the flag and logo of the plaintiff by the defendant. 5. The defendant's infringement of the flag and logo of the plaintiff has the potential of exposing the Christian community, to political violence. The members of the plaintiff society apprehend unnecessary trouble due to the infringement and passing off of the flag and logo of the plaintiff by the defendant. 5. The plaintiff prayed for:- "A) for a permanent injunction restraining the defendant or their men, agents, servants, directors, representatives, successors, assignees or anybody claiming through them from in any manner infringing the copyright of the plaintiff by use of identical or deceptively similar flag, stationary or waving, or in any other manner whatsoever by unlawful reproduction of the original artistic work of the plaintiff; B) for a perpetual injunction restraining the defendant, their men, agents, servants, directors, successors, assignees, representatives, or anyone claiming through them from passing off and/or enabling passing off by use of identical or deceptively similar flat, stationary or waving, as and for that of the plaintiff, or in any other manner whatsoever by unlawful reproduction of the original artistic work of the plaintiff; C) to direct the defendant to deliver up to plaintiff or their representative for destruction all infringing materials including flags, logo, advertisements, letterheads, visiting cards, etc., carrying the infringing materials or any other deceptively similar artwork and device; D) to direct the defendant to render a true and faithful account of profits made by the use of the aforesaid artwork in violation of the plaintiff's statutory rights and thereafter pass a final decree in favour of the plaintiff and against the defendant upon ascertaining the veracity thereof;" 6. Written statement in brief: The suit is untenable both in law and on facts. Plaint averments in entirety denied. The claim of the plaintiff that the design of the flag and logo was conceived by the bishops and used in the functions of the church is denied. Indiya Janahayaka Katchi (hereinafter referred to as "IJK"), is a political party founded by Dr. T.R. Patchamuthu in the year 2010 and duly registered with the Election Commission of India under the Representation of Peoples Act on 27/04/2010. Prior to the political party, most of the members of party were doing public services and charities in the name of 'Pari Narpani-Mandram'. The said Mandram was formed several years ago by the Tamilnadu Parkavakula Sangarh. T.R. Patchamuthu in the year 2010 and duly registered with the Election Commission of India under the Representation of Peoples Act on 27/04/2010. Prior to the political party, most of the members of party were doing public services and charities in the name of 'Pari Narpani-Mandram'. The said Mandram was formed several years ago by the Tamilnadu Parkavakula Sangarh. The Mandram from its inception has formulated a flag of specific design with three strips of colours arranged vertically in three equal proportion. The top 1/3rd and bottom 1/3rd in red colour and the middle 1/3rd with white colour. This flag has been formulated to have distinct identity for the Mandram and being used by the Mandram for decades. The Mandram having more than 5000 branches established throughout Tamil Nadu. It has conducted several conferences and functions throughout the State which were widely covered by print and electronic media. When third parties tried to set up a false claim over the flag, the defendant promptly filed suit before the City Civil Court, Chennai in O.S. No. 9509 of 2009 on the file of the XVII City Civil Court, Chennai and obtained decree in its favour. When T.R. Patchamuthu decided to float the political party by name Indiaya Jananayaka Katchi (IJK), the Mandram granted permission to the defendant to use. the flag vide resolution dated 14/04/2010. The Mandram being the original user of the flag, the suit is bad for non-joinder of necessary party. Further, the defendant has filed application for revocation of the copyright granted to the plaintiff and same is pending. 7. The defendant party started on 27/04/2010 and its inaugural function was held on 28/04/2010 where the flag was introduced to the media and given wide publicity. The All India General Conference of the party held on 31/05/2010 at Trichy where more than 5 lakhs people participated. The defendant party candidates contested the election. The leader of the defendant party through television had explained the reason for choosing the colours and design of the flag. 8. The suit is not maintainable for want of cause of action and on the ground of statutory bar under section 15(2) of the Copyright Act, 1957, the flag which consists of three horizontal stripes with red white and red arrangement is identical to the national flag of Austria and similar to flags of many other countries like French Polynesia, Habana, Lata and Peru. This flags are in use much prior to the plaintiff. The plaintiff has obtained copyright by fraud. Hence, the defendant has filed application under section 50 of the Copyright Act for revocation and the said application is pending adjudication." 9. The suit subject flag is not the original work of the plaintiff. No skill or labour has been spent by the plaintiff in creation of the flag and in fact, it is copy of the some of the foreign country flag. The flag has been printed and reprinted more than 50 times, therefore, the plaintiff cannot claim copyright owes it. 10. In respect of the above pleadings, the followings issues were framed by this Court:- "1. Whether the plaintiff is the owner of the copyright of the flag and logo? 2. Whether the defendant had infringed the plaintiff's registered copyright of Rag and Logo? 3. Whether defendant had committed the tort of passing off of the plaintiff's flag and Logo? 4. Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant or their men or agents from infringing its copyright by use of identical or deceptively similar flag, stationary or waving or in any other manner? 5. Whether the plaintiff is entitled to a decree for punitive damages? 6. Relief and cost" 11. The plaintiff has examined Rev. Fr. V. John Kennedy as P.W. 1 and 26 documents were marked as Exs. P.1 to P.26. On the side of the defendant, B. Rajendran, the Propaganda Secretary of the defendant party examined as D.W. 1 and 6 documents Exs. D.1 to D.6 were marked. 12. Issue No. 1:- "1. Whether the plaintiff is the owner of the copyright of the flag and logo?" The plaintiff to substantiate the pleadings has examined Rev. Fr. V. John Kennedy as P.W. 1 who has filed proof affidavit and also subjected himself for cross-examination. The plaintiff relies upon 26 exhibits primarily among them, Ex. P.5 which is the invitation cards for the inaugural function of the plaintiff Society on 11.05.2008 at various places across the State. In some of the invitations, the flag and logo of the plaintiff is printed. The red, white and red colours arrangement horizontally in equal size is predominantly printed in the invitation. Ex. P.5 which is the invitation cards for the inaugural function of the plaintiff Society on 11.05.2008 at various places across the State. In some of the invitations, the flag and logo of the plaintiff is printed. The red, white and red colours arrangement horizontally in equal size is predominantly printed in the invitation. Ex. P.6 is the cover page of some of the magazines published by the Christian Minorities wherein, the subject flag and logo are printed along with the news related to the plaintiff society. The front cover of these magazines are during the month of April-May 2008. 13. Ex. P.8 is the CD containing the material relating to the inauguration of the plaintiff organization. The photographs of the inaugural function held at various places across the State shows the members of the plaintiff Society displaying the flag with red white and red colour combination. The event has widely covered by print media also and reported in their dailies with photographs wherein, the members are conducting rally carrying the flag and placards - Ex. P.7. 14. There can be no doubt about the veracity of the documents and the use of flag in the said pattern and colour combination by the plaintiff since, 11.05.2008 is clearly established through these documents. On 15.09.2009, the plaintiff has applied for the copyright in respect of the flag and logo. They have been treated as artistic work by the Registrar of Copyright and the same has been registered and the certificate has been issued, "on 15.10.2010 for the flag and logo. The certificate of registration for the flag and logo is marked as Ex. P.10. The certificate is annexed with the copy of the flag and logo which establishes the fact the plaintiff society use of the said flag and logo from the year 2008 and has applied copyright registration on 15.09.2009 and the same has been received by the Registrar of the copyrights on 25.09.2009 after scrutiny, the certificate has been issued on 15.10.2010. Therefore, there can be no doubt regarding the ownership of the copyright of the suit subject flag and logo which is placed with the plaintiff. Issue No. 1 is answered accordingly. 15. Issue No. 2:- Whether the defendant had infringed the plaintiff's registered copyright of Flag and Logo? The defendant admits that their flag is identical to that of the plaintiff. Issue No. 1 is answered accordingly. 15. Issue No. 2:- Whether the defendant had infringed the plaintiff's registered copyright of Flag and Logo? The defendant admits that their flag is identical to that of the plaintiff. However, the defendant would say that under Section 15(1) of the Copyright Act, the plaintiff cannot have exclusive right over it and the suit flag was not the invention of the plaintiff prevailing colour combination found in the national flag of several other countries. Further, the defendant would also state that the plaintiff is not the prior user of the flag there were others who were using the said flag similar to the colour combination of the plaintiff's flag. 16. It is also contended by the defendant that prior to launch, the political party IJK, Paari Narpani Mandram was using the flag of same colours combination. In this connection, though it is contended that the defendant has filed petition under Section 50 of the Copyright Act, for rectification of the copyright given to the plaintiff regarding the flag under registration No. A/98136 of 2010 and a photo-copy of the notice received from the Copyright Board is marked as Ex. D.5 with objection, the defendant has not produced any document to show that his rectification application was accepted by the Copyright Board and the Copyright Certificate issued to the plaintiff got cancelled. 17. The contention of the defendant is that, the colour combination arrangement of the suit flag is not unique or exclusive for the plaintiff under Section 15(2) of the Copyright act. Copyright in any design which is capable of being registered under the Designs Act, but has not been so registered shall seize as soon as any article to which the design has been applied and has been re-printed more than 50 times by the owner of the copyright or with his licence by any other person. 18. Copyright in any design which is capable of being registered under the Designs Act, but has not been so registered shall seize as soon as any article to which the design has been applied and has been re-printed more than 50 times by the owner of the copyright or with his licence by any other person. 18. Section 2(d) of the Designs Act reads as follows:- 2(d) "design" means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trademark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in section 479 of the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957 (14 of 1957)." 19. Section 2(d) of the Designs Act indicates that flag with a particular colour combination and proportion is only an artistic work falling under the Copyrights Act. The Designs Act beside defining design also defined copyright is an exclusive right to apply a design to any article in any class in which the design is registered. Section 48 of the Copyrights Act says that register of Copyrights to be prima facie evidence of particulars entered therein. The Register of Copyrights shall be prima facie evidence of the particulars entered therein and documents purporting to be copies of any entries therein, or extracts therefrom certified by the Registrar of Copyrights and sealed with the seal of the Copyright Office shall be admissible in evidence in all courts without further proof or production of the original. Such registration can be rectified referring Section 50 of the Act. IN this case, the defendant has made an admission for rectification of the copyright conferred on the plaintiff but has failed. Such registration can be rectified referring Section 50 of the Act. IN this case, the defendant has made an admission for rectification of the copyright conferred on the plaintiff but has failed. Section 15(2) of the Copyrights Act will apply only if a design is registered under the Designs Act, 2000 and been reproduced for more than 50 times. This is the case where the flag colour combination has been registered under the Copyrights act and registrar having recognised it as a copyright and registered it Section 15(2) of the Copyright Act has no application for the case in hand. 20. The learned counsel for the defendant contends that the copyright in the design obtained by the plaintiff has lost his exclusiveness after it being reprinted for more than 50 times. To buttress the said submission, the learned counsel for the defendant would rely upon Section 2(c) of the copyright Act which interprets the word "artistic work" as under:- " Section 2 (c) "artistic work" means,- (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 work of architecture; and (iii) any other work of artistic craftsmanship;" 21. The learned counsel for the defendant should further state that, the flag with colour combination with certain proportions is only a design as defined under the Designs Act and after the Designs Act, 2000, any copyright given for a design shall not subsist as per Section 15(1) of the copyrights Act and therefore, whatever right inured by the plaintiff by registering subject flag under the copyrights act is non existence in law and that will, not bind the defendant. 22. In this regard, the learned counsel for the plaintiff would submit that the defendant with intention of exploiting the popularity gained by the plaintiff society has imitated the flag of the plaintiff. After launching the political party, when objection was raised by the plaintiff for using its flag and colour combination, the defendant filed the rectification application under Section 50 of the Copyrights Act before the Copyright Board. However, did not pursue the application before the Copyrights Board. Hence, the application of the defendant was dismissed. Therefore, the copyright obtained by the plaintiff which is marked as Ex. P.10 is valid and subsisting. However, did not pursue the application before the Copyrights Board. Hence, the application of the defendant was dismissed. Therefore, the copyright obtained by the plaintiff which is marked as Ex. P.10 is valid and subsisting. No person can infringe the said copyright in any manner. The Copyright Board which is. the competent authority to decide about the nature of the work presented for copyrights registration, have applied their mind and granted certificate to the plaintiff regarding the colour arrangement of the red-white-red flag. The certificate clearly indicates that it is an artistic work. When the authority competent has, prima facie satisfied that it has artistic work and granted certificate, the defendant who has challenged the grant of certificate by filing rectification application has not. pursued but allowed the application to go in dormant cannot before the Court plead contrary. 23. The compromise decree, passed in the suit filed by the plaintiff, as against Annai Therasa Welfare Association cannot be a shield for the defendant for using the flag with red white and red combination identical to that of the plaintiff's flag. 24. One other contention raised by the learned counsel for the defendant is 'that pending suit, the defendant has changed the flag by engraving UK in the middle of the flag in the white colour portion and therefore, there cannot be any similarity or deceptively similarity between the plaintiff flag and the defendant flag. The defendant's flag is marked as Ex. D.6. Ex. P.23 is the flag of the plaintiff. Ex. P.23 and Ex. D.6 are identically similar except the letters "UK" engraved in the middle. 25. The contention of the defendant is that, they have been using this flag for decades under the banner of "Pari Narpani Mandram" and later, the Mandram has permitted the defendant party to use the flag to show that they are the prior user of the said colour combination in their flag. For this pleading, in the written statement, there is no evidence. Furthermore, the plaintiff having duly registered their flag under the Copyrights Act and been using continuously for identification of their Society which is declared as anon political society. If a political party which has registered itself under the Election Commission of India as imitates the flag of the non political party/society there shall always be confusion in the minds of the general public regarding the plaintiff society agenda. If a political party which has registered itself under the Election Commission of India as imitates the flag of the non political party/society there shall always be confusion in the minds of the general public regarding the plaintiff society agenda. Therefore, this Court holds that it is a clear case of infringement of the plaintiff's registered copyrights of the flag by the defendant. Regarding logo, this Court finds no material to indicate that the defendant has imitated the logo of the plaintiff. Therefore, there is no question of infringement of plaintiffs logo by the defendant. Issue No. 2 is answered accordingly. 26. Issue No. 3:- 'Whether defendant had committed the tort of passing off of the plaintiff's flag and Logo?' Passing off in common law is considered to be a right for protection of goodwill in the designs against misrepresentation caused in the course of trade and for prevention of resultant damage on account of the said misrepresentation. The three ingredients of passing off are goodwill, misrepresentation and damage. Passing off is an actionable wrong for a trader so to conduct his business as to lead to the belief that his goods services or business or the goods services are business of another. It is a tortious liability actionable under law.. 27. One has to look into the fact 'whether imitation of the flag by the defendant was with calculated intention to mislead and exploit the goodwill of the plaintiff by the said representation'. As of now, the plaintiff is a non political organization. Whereas the defendant is a political party contesting in election. The plaintiff has not adduced any evidence to show that by the imitation and infringement the goodwill or reputation of the plaintiff got damaged. Even in the plaint itself only an anticipated political violence referred by the plaintiff but not actual damage. To hold the defendant under the tortious liability of passing off, the plaintiff ought to have placed adequate evidence which is not available in this case and therefore, the defendant though had infringed the copyright of the plaintiff by imitating the registered flag of the plaintiff, there is no adequate evidence of passing off. Hence, this issue is held against the plaintiff. 28. Hence, this issue is held against the plaintiff. 28. Issue No. 4:- 'Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant or their men or agents from infringing its copyright by use of identical or deceptively similar flag, stationary or waving or in any other manner?' 29. In view of the finding of this Court in respect of issue No. 1, the plaintiff is entitled for permanent injunction. Hence, Issue No. 4 is answered in affirmative. 30. Issue No. 5:- 'Whether the plaintiff is entitled to a decree for punitive damages?' 31. Having held that the plaintiff has failed to prove passing off leading to damage, the plaintiff is not entitled for any decree for punitive damages however, the plaintiff is entitled for the direction to the defendant to deliver up to the plaintiff or their representative for destruction of all infringing materials including flags, advertisements, letterheads, visiting cards etc., carrying the infringing materials or any deceptively similar art work and device as that of the plaintiff, is ordered. 32. In the result, the suit is partly decreed as follows:- (i) Prayers for injunction in (a), (b) and (c) are allowed in favour of the plaintiff as prayed for; (ii) In respect of prayer (d), the plaintiff is not entitled for the relief and (iii) In respect of prayer (e) the plaintiff is entitled for costs.