DEVINDER GUPTA, J.

(1) THE plaintiff in this application is seeking temporary injunction against the defendant from circulating cover jackets, stickers or any other advertisement material promoting the impugned character under the impugned name "nagesh", in any manner whatsover, so as to be likely to amount to infringement of the plaintiffs copyright in the character "nagraj".

(2) THE plaintiff in the suit filed against the defendant has claimed a decree for declaration to the effect that the copyright in the comic series NAGRAJ and the character of "nagraj" vests in the plaintiff and the intention of the defendant to bring out comic series under a closely resembling title and having a "nagraj- like" character as its hero, is unjustified and would amount to misrepresentation. In addition to praying for a decree for declaration, the plaintiff has also prayed for decree for injunction restraining the defendant, its distributors, servants, agents and representatives from circulating cover jackets, stickers or any other advertisement material promoting the impugned character of "nagesh" in any manner whatsoever so as to likely to amount infringement of the plaintiffs copyright in the character "nagraj" and for rendition of accounts of profits illegally made by the defendant by encashing upon the plaintiffs reputation and good will.

(3) THE suit is founded on the allegation that the plaintiff is engaged in the business of publishing and distribution of paper back novels, books and comics for the last several years. Among the various comic book s published by the plaintiff is a series titled "nagraj", which is immensely popular especially among the younger generatioon. The first issue of the comic series titled "nagraj" was brought out in March, 1986 and since then the plaintiff has published 22 issues and sold approximately 15,21,500 copies of the comic book series under the said title. A list of all the titles of the said series is attached as Annexure-A to the plaint. The plaintiff claims total turnover from the sale of NAGRAJ comic from 1986 till the date of filing of the suit to the tune of around Rs. 50,00,000. 00 , which according to the plaintiff is an indicium of the mass appeal of the comic series. In addition the plaintiff claims to have spent a sum of Rs. 8,00,000. 00 in advertisement and publicity through television, radio, magazines etc. It is claimed that the central character of the series is a fictitious being bearing a similar name as that of comic series, namely, NAGRAJ. The character depicted in the plaintiffs comic book series is attired in a green coloured body stocking giving the impression of serpentine skin and red trunks with a belt, which appears to be a snake. The character of NAGRAJ, according to the plaintiff was designed for and on behalf of the plaintiff by late Shri Jagdish Pankaj in June, 1985, who executed an assignment in plaintiffs favour in respect of the copyright. Later Shri P. Mullick, a professional artist, continued to create the series revolving around the exploits of the said character "nagraj" for and on behalf of the plaintiff. Accordingly, it is claimed that the plaintiff own the copyright in the comic book series titled NAGRAJ as well as in the fictituous character of NAGRAJ, its get up and appearance. The plaintiff also owns the copyright in the situations, incidents and the main idea running through each of the episodes of the NAGRAJ series. The plaintiff, therefore, has the exclusive right to print, publish and sell the same in any material form. The name of the character or hero of the plaintiffs comic NAGRAJ is also a trade mark and the plaintiff is the common law proprietor of this trade mark.

(4) IT is alleged that it came to the plaintiffs notice that the defendant is also engaged in publishing and distributing paper-back novel and comics when the plaintiff recently come across cover jackets and stickers circulated by the defendant in book shops advertising the new comic series, scheduled to be released by the defendant under the tile NAGESH. From the material circulated by the defendant, it is apparent that the proposed publication has its central character a fictitious being, possessing the magical powers of snakes. This character has been named NAGESH by the defendant and is also depicted in green colour body stocking and red coloured trunks, which is a substantial reproduction of the character NAGRAJ for and on behalf of the plaintiff. The plaintiff alleged that comic series, proposed to be published by the defendant under the impugned title NAGESH amounts to an outright infringement of the plaintiffs copyright in its series NAGRAJ. The character NAGESH designed by the defendant being a substantial reproduction of the plaintiffs NAGRAJ character in terms of get up, appearance as well as in terms of qualities, the defendants impugned comic will in all likelihood be passed off as those of the plaintiffs. The apprehension of the plaintiff is not imiginary but real and geneune as the factual circumstances giving rise to the plaintiffs apprehension have been clearly set out. The defendants intentions are obvious from the campaign launched by the plaintiff. The plaintiff being the creator and originator of the character of the series has the exclusive right to print, publish and sell. Anyone imitating the character and borrowing the theme of the plaintiffs series would infringe the plaintiffs copyright and damage to its goodwill, business and reputation.

(5) IN the back ground, decree aforementioned has been claimed by the plaintiff and temporary injunction during the pendnecy of the suit was also prayed. The Court on 27th September, 1991, while directing summons to be issued in the suit and notice in the miscellaneous application, found a prima facie case having been made out for grant of ex parte order of injunction. The defendant consequently was restrained from depicting imaginary character "nagesh" in green colour in their comics till the next date. It was also directed that the defendant will not show "nagesh" in green costume. The injunction has continued till date.

(6) THE defendant in reply has denied that the first issue of the comic book series of the plaintiff titled NAGRAJ was brought about in March, 1986. The defendant also denied the plaintiffs claim in having acquired proprietorship either in the fictitious character NAGRAJ or in the word nagraj. The defendant denied that character NAGRAJ is depicted in plaintiffs comic series in green colour body stocking giving the impression of serpentine skin and red trunks with a belt, which appears to be a snake. According to the defendant, the plaintiff has been using the alleged character in different get ups, make ups, colour schemes, appearances, illustrations and compositions. The other publishers of comics have also been showing a serpentine skin in a green colour body in view of the fact that such green coloured serpentine skin is indicative to the character and role of the serpentine of human beings, may be man or woman. According to the defendant, such green colour is, therefore, common to trade and being commonly used by other publishers, in relation to their comics and comic series, the use of such colour does not cause any deception and confusion in the market as comics are generally demanded with reference to the title/name of such comics. The defendant has also denied that the character of NAGRAJ was designed for and on behalf of the plaintiff or that there is any valid assignment in plaintiffs favour. The defendant claims that it is publishing and selling comics under the title RADHA COMICS and the hero of the defendants comics is designated as NAGESH. The defendant adopted the art work, which is original and is neither a reproduction, nor a copy of any other art work including that of the plaintiff and thus the defendant is entitled to its exclusive use to the exclusion of others. The defendant has denied that except the central character of the fictitious being, possessing the magical powers of snakes under the name NAGESH, wearing a green coloured body stocking and red coloured trunks, there is no substantial reproduction of the character NAGRAJ, alleged to be created for and on behalf of the plaintiff. According to the defendant, there is a difference in the names of the character, namely, NAGESH and NAGRAJ, which are descriptive and laudatory in relation to comics having a serpentine as main character therein. The name NAGRAJ is being commonly used by others in relation to comics. Even M/s. Goyal Comics is being published under the name NAGRAJ KEE HAR. There is nothing substantial reproduction of the plaintiffs NAGRAJ character in terms of get up, appearance and quality. The defendants art work involved in the character of NAGESH is the original art work, not in any way conflicting to the art work of others, including that of the plaintiff. The defendant has denied that there is likelihood of passing off. Apprehension of the plaintiff that it is likely to create confusion in the mind of the persons, who usually purchase such comic is false and imiginary.

(7) I have heard learned counsel for the parties and have been taken to the entire record. The plaintiff has placed on record copies of the title comic published under series NAGRAJ and has also produced on record copy of the first issue NAGESH published by the defendant, which was issued after the ex parte order of injunction had been passed, for which there is also an application moved by the plaintiff under Order 39 Rule 2a Civil Procedure Code. alleging infringement of the ex parte order of injunction. I have minutely gone through the issues of the two comics NAGRAJ and NAGESH, which are on record.

(8) SECTION 51 of the Copyright Act, 1957 (for short " the") gives the circumstances, under which a copyright in a work shall be deemed to be infringed and Section 55 of theconfers a right upon a person where copyright in a work has been infringed, to initiate an action by taking out civil remedies for infringement of copyright including action for injunction, damages, accounts etc. It also sets out the defences available to the defendant. I need not discuss in detail the various decisions, which have been cited at the bar except by referring to a decision of the Supreme Court in R. G. Anand v. M/s. Delux Films and others, A. I. R. 1978 S. C. 1613, which carves out various principles, which have to be borne in mind and various tests, which have be applied in finding out whether there has been infringement of a copyright. It has been held that there can be no copyright in an idea, subject matter, themes, plots or historical or legendry facts and violation of the copyright in such cases is confined to the form,manner and arrangement and expression of the idea by the author of the copyrighted work.

(9) THE plaintiff has produced on record copy of the assignment in its favour by Shri Jagdish Persad, who in the assignment has stated that design of NAGRAJ is his original creation on behalf of M/s. Raja Pocket Books, Delhi and the said designs now are the sole property of M/s. Raja Pocket Books after the assignor received full consideration for designing the said copyright. It is clearly stated that the copyright in design NAGRAJ vests exclusively in M/s. Raja Pocket Books, Delhi. Photo copies of the advertisement bills showing the expenses incurred by the plaintiff on advertisements of comic series NAGRAJ, photo copies of the bills of Artists raised on the plaintiff in respect of comic series NAGRAJ, photo copy of advertisements in various periodicals and magazines with English translation, stickers of the defendants, as circulated with their translation and partnership deed.

(10) THE defendant also filed along with its reply annexures A to G, covering page of various other producers of comics in support of its version that similar work is also being published by others, similar to the plaintiff.

(11) THOUGH the defendant has denied that the first issue of NAGRAJ was taken out by the plaintiff in the year 1986, as alleged, but such a denial is meaningless in view of the material produced on record by the plaintiff. On its scrutiny, prima facie it appears that the plaintiff brought out its first issue of NAGRAJ, as alleged, in the year 1986 and thereafter continued to bring out new series of NAGRAJ in 22 other issues. In case NAGRAJ is an idea, in terms of the decision in R. G. Anands case (supra), there can be no copyright in an idea, subject matter, themes or plot of legendry facts. The copyright will be confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendants work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copy right. In the words of R. G. Anands case (supra), in order to be actionable, the copy must be a substantial and material one, which at once leads to the conclusion that the defendant is guilty of an act of piracy. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer, after having read or seen both the works is clearly of the opinion and gets and unmistakable impression that the subsequent work appears to be a copy of the original. But there will no question of violation of copyright where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work.

(12) IN R. G. Anands case (supra), it was held that where apart from the similarities appearing in the two works, there are also material and broad dissimilarities, which negative the intention to copy the original and the consonance appearing in the two works are clearly incidental no infringement of the copyright comes into existence.

(13) PLAINTIFF alleges that concept is the same, meaning is the same, green colour costumes with scales are also almost identical in both cases, gaunlet is ripped in both the cases. Functionally, both the characters, namely, NAGRAJ and NAGESH can scale walls, both can hurl snakes with hand; both have a snake like rope (Nag Rassa) as a rope for purposes of climbing. Both when bites, the object melts like a wax.

(14) AS against this, reply of the defendants is that there is a considerable difference. Serpentine in green colour is everybodys right to depict snake like character in such costumes. There cannot be any copyright for an idea. Expression of thought, is not that of the plaintiff. Other people have also been using similar ideas as can be seen from annexures C to G, appended to the reply and that cannot be a copyright in imaginary characters.

(15) MEANING of the word "nagraj" and "nagesh" is the same, namely, king of snakes. The idea depicted in the comic NAGRAJ is of a human being (male) with snake like characteristics, who can climb walls and roofs, can blow poison and kill his enemy, capable of releasing snakes from any part of his body, the snake so released from the body after completing their work return back to the body and merge in the snake like character NAGRAJ. In the comic "nagraj" the character is shown to be a creature of professor Nagmani, an expert and knowledgeable person with respect to snakes with the object of helping criminals and militants in furtherance of their object of creating terrorism etc. , which due to intervention of Baba Gorakhnath is transformed into a Harmit, a noble character used for eradication of terrorism from the earth.

(16) IN NAGESH comic of the defendant, somewhat same and similar idea is depicted in a slightly different form by re-arranging the events. Dr. Nagpal gets a Nagmani (pearl). The same is inserted in his mind of a dead person, who is transformed by Dr. Nagpal into a character known as NAGESH, capable of climbing walls, hurling snakes from his body, capable of melting the objects and the snakes after accomplishing their work capable of returning to the body of NAGESH. This character created by Dr. Nagpal helps criminals in achieving their criminal object and ultimately a harmit comes on the scene, who tries to transform the character to help in eradicating crime.

(17) THE central idea of the two characters is the same. Applying the surest and safest test to determine whether or not there has been a violation of copyright, there is no escape from the conclusion prima facie that in case of any reader on going through both the works will clearly be of the opinion and will get an unmistakable impression that comic NAGESH is a work, which appears to be a copy of NAGRAJ. Not only the theme is the same, though presented slightly and somewhat differently, but the central idea remains the same. There are no material or broad dismilarities. The question whether the two marks are so similar as likely to cause confusion or deceive, is for the Court to decide. The question has to be approached by applying the Doctrine of Fading in Memory i. e. from the point of view of a man of average intelligence having imperfect recollection. Whether the overall visual and phonetical similarities of the two marks is likely to deceive such a man or cause confusion that he could make mistake, for the goods of the defendant for those of the plaintiff. In addition to this, the other question is about the persons who are likely to be deceived and what rules or comparasion are to be adopted in judging whether such resemblance exist. Undoubtedly, it is the younger generation, who are the persons likely to be deceived. They will be well versed in reading the language in which both the comics have been brought in, namely, Devnagri Script (Hindi). The rules of comparison to be adopted in judging the resemblance would be those as are stated in the decision of the Supreme Court in R. G. Anands case (supra), namely, an unmistakable impression that the subsequent work appears to be the copy of the original. Similarly about the theme of visual, phonetical similarity and over all impression of the two works that the same is likely to deceive such a man or cause confusion that he may make mistake in the goods of defendant for that of the plaintiff. NAGRAJ and NAGESH having same meaning, namely, King snakes; Colour of comics is also green, gaunlets are ripped in both cases, functionally, both are capable of doing same and similar work, namely, scaling the walls and the roofs alike, hurling snakes, causing the objects to melt and the snakes capable of returning back and merging in the body of the character. For the purpose of climbing, both use the same material,namely, rope in the form of snake.

(18) AT this stage only a prima facie view has to be formed, which will not affect the rights of the parties on the merits of their respective claim. On a prima facie view, the plaintiff is a prior user of the mark NAGRAJ - in his work, namely, comics under the caption nagraj in a number of series. The defendant is a publisher who intended to bring about a new series subsequently. The plaintiff approached the Court at the very initial stage when the offending serial was intended to be published and circulated. The objection of the defendant that a few other publishers have tried to make use of similar character or mark or have brought out similar comics cannot affect the plaintiffs right particularly in view of the fact that it is not shown that the plaintiffs right stood lost due to abandonment acquiescence or otherwise. Mere surrupteuos user or spordic user/piracy in a concealed manner by the others will not give any right to the defendant to violate the plaintiffs right. The defendant has no right to use same distinguishing or essential features or convey the same idea in any of its work and the same can be ordered to be stopped by granting an order of temporary injunction for which on a relative strength of each partys case as revealed by the affidavits on record and in view of the fact the defendants business is recent one, as in the instant case, it would be appropriate to grant injunction to prevent violation of the plaintiffs right, if the defendant can be compensated in terms of damages.

(19) CONSIDERING the facts and circumstances of the case, I find it to be a fit case to allow plaintiffs application and restrain the defendant by way of injunction for the duration of the suit either from itself or through its partners, or servants, distributors, agents and representatives from circulating stickers, posters or any other advertisement material promoting the impugned character under the impugned name NAGESH or in any manner whatsoever so as likely to amount to infringement of the plaintiffs copyright in the character NAGRAJ or from publishing and circulating comic to that effect. Application is allowed.