2011 Supreme(Kar) 717

High Court of Karnataka
N. KUMAR
M/s. Metal Impacts Pvt. Ltd., Represented by its Representative Senior Sales Manager N. Gopalakrishna
Versus
M/s. Impact Metals Pvt. Ltd., Represented by its Managing Director
OS No.1 of 2007 C/w OS No. 2 of 2007
Decided on : 16-12-2011

Headnote:DESIGNS ACT, 2000 - Section 2(d): [N. Kumar, J] ’Design’ - Meaning of - Held, The concept of design is that a particular figure conceived by its designer in his mind and it is reproduced in some identifiable manner and it is sought to be applied to an article. Design means, therefore a conception or suggestion or idea of a shape or of a picture or of a device or of some arrangement which can be applied to an article by some manual, mechanical or chemical means. A design is necessarily part and parcel of the article manufactured while a trade mark is not necessarily so. Therefore, both the things are required to go together, i.e., the design and the design which is to be applied to an article. The idea is that the design has to be registered which is sought to be reproduced on any article. Registration of design is not a defence if the impugned design has been published by others prior to date of registration.

       DESIGNS ACT, 2000 - Section 2(g): [N. Kumar, J] ’Novelty’ - Held, Novelty so as to sustain a patent, the thing must not have been known to any one before. Mere novelty of form is not sufficient. Novelty involves the presence of some element or new position of an old element in combination, different from anything found in any prior structure. If the same shape or pattern, or one substantially similar, has previously been thought of in connection with any article of manufacture and the idea published, or registered, then the design will be deprived of its novelty. Protection will be given to any design which is new or original. ’New’ means different from what has gone before and that ’original’ has the same meaning as in the Copyright Act, i.e., originating from the author. ’New’ referred to cases where the shape or pattern was completely new in itself, whilst original referred to cases where, though old in itself, it was new in its application to the article in question. The expression that ’new’ or ’original’ has to be construed in the context where this design has even been reproduced by any other Company earlier. It is only the new and original design which is new and which has not been available in the country or has not been previously registered or has not been published in India or in any other country prior to the date of registration shall be protected for a period of ten years. It is in the nature of protection of the intellectual property right.

       DESIGNS ACT, 2000 - Section 2(g): [N. Kumar, J] ’Original’ - Held, The word ’original’ refers to design which no previous designer had created for any purpose and ’new’ as referring to a design which was not in this sense original but was newly and for the first time applied to the particular kind of article with reference not to the classification in the third schedule of the Designs Rules 1908 but to the kind’ of article having regard to its general character and use. The word ’original’ contemplated that the person had originated something that by the exercise of intellectual activity he has started an idea which had not occurred to anyone before, that a particular pattern or shape or ornament may be rendered applicable to the particular article to which he suggests that it shall be applied. ’New or original’ involve the idea off novelty either in the pattern, shape or ornament itself or in the way in which an old pattern, shape, or ornament is to be applied to some special subject-matter. There must be the exercise of intellectual activity so as to originate, that is to say, suggest for the first time, something which had not occurred to anyone before as to applying, by some manual, mechanical, or chemical means, some pattern, shape, or ornament to some special subject-matter to which it had not been applied before.

       DESIGNS ACT, 2000 - Section 22: [N. Kumar, J] Infringement of registered designs - Suit for injunction - Plaintiff company manufacturing bottles with easy open end lids and round pour apertures - Registered design owned by plaintiff has been published in international journals in various countries abroad prior to as well as in India registration - Said design was not new or an original design - Further there was considerable difference between plaintiff’s and defendant’s product - Defendant was not imitating the plaintiff in matter of shape and configuration - Held, Plaintiff is not entitled to relief of injunction.