IN THE HIGH COURT OF BOMBAY
D.K. Deshmukh, J.
Smithkline Beecham Consumer Healthcare Gmbhy others.... Plaintiffs.
Versus
Hindustan Lever Limited another.... Defendants.
Notice of Motion No. 3554 of 1999 in Suit No. 6556 of 1999, decided on 2-8-2001.
Advocates appeared :
Ravi Kadam with Chander Lall, Vinod Bhagat and Ms. Dahlia Sen Oberoi i/b. G.S. Hegde V.A. Bhagat, for plaintiffs.
Virendra Tulzapurkar with H.W. Kane with Virag Tulzapurkar i/b. Crawford Baley and Co., for defendants.
Order II, Rules 1 and 2- Failure to abide by the rules- The provisions of Rule 2 of Order 2 is mandatory where as the provisions of Rule 1 is directory. A comparison of the provisions of Rules 1 and 2 or Order II shows that, there are two marked differences (i) Rule 1 uses the phrase "subject in dispute", whereas Rule 2 uses the phrase cause of action" and (ii) Rule 2 provides that failure of a plaintiff to abide by the mandate of Rule 2 results in the plaintiff being debarred from instituting a fresh suit for that claim. However rule 1 does not provide for the consequence that will result from non-compliance.
CIVIL PROCEDURE CODE, 1908
Order II, Rules 1 and 2 and Sections 9 and 11- Non including of all available reliefs- Plaintiff is bound to take all grounds available to him and seek all relief which could be claimed on the facts of the case. The provisions of Sections 9, 11, 151, Order II, Rules 1 and 2 C.P.C., oblige the plaintiff to frame his suit in a manner that a final decision can be given on the entire subject in dispute unless the particular ground is not within the knowledge of the plaintiff. Therefore if plaintiff disregard the mandates of these provisions and institute a suit leaving out some grounds though available and subsequently institutes a suit on the grounds which were left out, than the subsequent suit will be barred and will amount to abuse of process of the law.
D.K. DESHMUKH, J.:---This Notice of Motion is taken out by the plaintiffs. The plaintiffs have filed this suit seeking a decree of perpetual injunction and other reliefs on the allegation that the defendants have infringed their copyright in the drawing and the mould used for manufacture of the toothbrushes.
2. The facts that are material and relevant for consideration and decision of this Notice of Motion are as under :---
The plaintiff No. 1 in the plaint claims that the plaintiff No. 1 is a German Company having its principal place of business at Hermannstrasse 7, 77815 Buhl, Baden, Germany. The plaintiff No. 1 was formerly known as Lingner + Fischer GmbH, having changed its name to that of the plaintiff No. 1 in 1996. It has at all material times been engaged in a variety of business in the healthcare field, more particularly in the design and sale of toothbrushes. The plaintiff No. 2 is a company registered under the Companies Act, 1956, and is the exclusive licensee in India under the several copyright works. The plaintiff No. 2 advertises, markets and distributes throughout India two models of toothbursh, the AQUAFRESH FLEX and AQUAFRESH FLEX N' DIRECT. These toothbrushes are manufactured for it by Menezes and Schiffer Dental Care Products Ltd. (formerely Menezes Electronics Limited) a company incorporated under the Indian Companies Act, 1956, having a place of business at 3 rua de Qurem, Panjim, Goa. The plaintiff No. 3 is an English public company having a place of business at New Horizons Court, Brentford, Middleses, TW 8 9EP, United Kingdom. It is the holding company for the plaintiffs Nos. 1 and 2, all of whose issued shares are ultimately owned by it. It has substantial interest worldwide in the pharmaceutical and healthcare fields. The subject-matter of this action is the precision mould sets in which two models of the plaintiff's toothbrushes are manufactured by the process of hot injection moulding of flowable materials. Such handles are thereafter tufted with bristles by a separate manufacturing operation and are subsequently blister packed for sale. Neither of these subsequent operations is relevant to this action. In making the abovementioned toothbrushes, a mould set is used for each of the two operations, each set comprising an upper and a lower mould each having a specially shaped cavity therein. The combination of the two said specially shaped cavities makes up a single cavity which in use corresponds exactly to the shape of the article moulded. In or about 1988, the plaintiff No. 1 commissioned a new design of plastic toothbrush from one Hans Halm ("Herr Halm"), a German product designer of international repute. Herr Halm's resulting design incorporated certain novel product features including an S shaped (or zig zag) connecting portion between the head and the handle of the toothbrush ("the S-bend"). These features were intended to (and did) imbue the toothbrush with both eye appeal and functional utility. This toothbrush, which is referred to herein as the MARK I model, was first sold in Europe in 1988 and is presently sold in India. In 1993, the plaintiff No. 1 again commissioned Herr Halm to design a plastic toothbrush which retained the S-bent configuration but which possessed a head and handle of different appearance. This he did, the resulting product being referred to herein as the MARK II toothbrush. Later in 1993, the plaintiff No. 3 commissioned Herr Halm to materially alter the appearance of the handle of the MARK II toothbrush and this resulted in what is hereinafter referred to as the MARK III toothbrush. The MARK I, MARK II and MARK III represent an evolution of Herr Halm's design. The MARK I and MARK II differ substantially in appearance. The MARK II and the MARK III differ in the appearance of the handle. Common to all three models is the S-bend configuration. This suit is not however concerned with these (or indeed any) toothbrushes but rather with the moulds in which they ar
Login now and unlock free premium legal research
Login to SupremeToday AI and access free legal analysis, AI highlights, and smart tools.
Login
now!
India’s Legal research and Law Firm App, Download now!
Copyright © 2023 Vikas Info Solution Pvt Ltd. All Rights Reserved.