N.M. Jamdar, J.

1. The trial Court by the impugned order has restrained the appellant-defendant 'Videocon Industries Ltd., from marketing a certain design of washing machine. According to respondent-plaintiff M/s.Whirlpool India Ltd., the appellant M/s.Videocon Industries Limited has infringed the designs registered by M/s Whirlpool India Ltd. and is also guilty of passing off the said product.

2. The respondent M/s Whirlpool India Ltd (referred hereinafter as 'Whirlpool') filed suit bearing Suit (lodging) No.1675 of 2012 in this Court seeking an injunction invoking provisions of the Designs Act, 2000 (hereinafter referred to as the 'said Act') against appellant M/s Videocon Industries Pvt. Limited (hereinafter referred as 'Videocon').

3. In the suit Whirlpool contended: It had registered two designs of washing machines on 15th July, 2009. The designs were registered for shape and configuration of washing machines in Class No.15-05. The designs were:

(a) Design No.223833 filed on 15th July 2009 and granted on 30th December 2009 in class 15-05 with respect to Washing Machine; and

(b) Design No.223835 filed on 15th July 2009 and granted on 31st December 2009 in class 15-05 with respect to Washing Machine.

The registrations are in force for a period of 10 years from 15th July, 2009, to be further extended for additional period of 5 years thereafter. The design of the washing machine of being square on one side and rounded on the other side is a distinctive and aesthetically appealing design. This design has proved to be a run away success, so much so that in a short span of around one and half years almost three lakh machines are sold. In June 2012 Whirlpool noticed a washing machine manufactured and marketed by Videocon Industries having same/similar design, shape and configuration as the one registered by Whirlpool India under the Design Nos.223833 and 223835. The washing machine marketed by Videocon Industries was so similar to the designs registered by Whirlpool India, that it was obvious that Videocon had infringed the designs registered and had done so deliberately to encash the popularity enjoyed by distinctive design of Whirlpool's washing machine. It was thus necessary to injunct Videocon from in any manner dealing with the impugned product whose designs were placed on record alongwith the plaint.

4. In the suit, Whirlpool also took out Notice of Motion (Lodging) No.1955 of 2012 seeking an order of interim injunction. Whirlpool placed on record the efforts taken by it for designing and popularizing its products and the sales figures generated since September, 2010. Videocon had not only copied the design but is also selling their product at a cheaper price, thus causing incalculable damage to the sales of the Whirlpool products. Whirlpool also placed on record that in the past also the Videocon had sought to copy and imitate designs of Whirlpool and it was injuncted by the Karnataka High Court. Whirlpool thus prayed that the Videocon should be immediately directed to desist from imitating and passing off the registered design of Whirlpool.

5. Videocon appeared in the suit and filed its reply to the Notice of Motion. In the reply Videocon urged: The design of washing machine registered by Whirlpool was not an original design. Such a design was in the market since last more than 50 years. Therefore, Whirlpool cannot claim any monopoly regarding such design. The product which Videocon marketed is not similar to the one registered by Whirlpool India. Whirlpool has registered its design for only size and shape and for no other aspect. Passing off action is not possible as Videocons' brand is known much more than the Whirlpool and there is no possibility that Videocon will try to sell its products as that of Whirlpool. If a consumer makes a conscious choice to select the product of Videocon which is distinct in appearance than Whirlpool and has its brand name prominently displayed, there is no passing off. Videocon