BHARATI H. DANGRE, J.

1. The present Appeal is filed by the Appellants (original defendants), being aggrieved by the order and judgment delivered by the learned single Judge of this court (Coram: G.S. Patel, J.) on 06.12.2016 in Notice of Motion No. 2195 of 2016 filed in Suit No. 742 of 2016, thereby recording the finding that the Plaintiff therein has demonstrated a prima-facie case and that the Hon'ble Court is persuaded to grant the said notice of motion in terms of prayer clauses (a), (b) and (c).

The present appellants were impleaded as Defendants/Respondents in the Suit No. 742 of 2016 which was filed by the plaintiff Company Mandev Tubes Pvt. Ltd. seeking protection of its registered design and alleging infringement and passing off.

Commercial Suit No. 742 of 2016 was filed by the Private Limited Company i.e. Mandev Tubes Pvt. Ltd. having its registered office at Mumbai, claiming that it manufacture/sells metal/copper tubes with diversified use and are often employed in household airconditioning, medical gas delivery pipelines and indoor plumbing. It is the case of the plaintiff-company in the suit, mentioned above, that it is engaged in the business of manufacturing, supplying and distributing the copper tubes for the last 45 years and during this period, it had developed a substantial goodwill and enjoys a sufficient reputation in the copper tube industry. The plaintiff gave details of its clientel, which included several companies and reputed institutions like Bhabha Atomic Research Centre to Sigma Meditech Services Pvt. Ltd. etc. According to the plaintiff, it conceived of a unique, novel and original shape and configuration for its tubes and the uniqueness and novelty in its design lies in one end of the tube, possessing an expanded bell-shaped like ending and that it conceived of such a shape, as it was aesthetically pleasing to the eye. Pursuant to such configuration, the plaintiff had applied for registration of this novel and original design under the Designs Act, 2000 and on 4th March, 2010, the concerned Registrar issued a certificate of registration in favour of the plaintiff. The plaintiff had placed on record the said registration certificate in relation to Design No. 224751 and the respective representation sheets, which have described the designs in the following manner.

FRONT/BACK VIEW/TOP/BOTTOM VIEW

“Novelty resides in the shape and configuration of the “METAL TUBE” particularly in the portions marked as "a" & "b" in Sheet No. 1 as illustrated.

No claim is made by virtue of this registration in respect of any Mechanical or other action of the Mechanism, what so ever, or in respect of any mode or Principle of Construction of the Article.

No claim is made in respect of descriptive matter, words, letters, Trade Mark, colour or Colour Combination and numerals as appearing in the Design.

No claim is made in respect of extraneous matter, which is not forming the integral part of the Design.”

2. In the suit, it is the claim of plaintiff that pursuant to the said registration, the plaintiff applied its unique and novel design to the copper tubes manufactured by it and those copper tubes were marketed and sold under the trademarks “MT ECO SELF CONNECT” and “MT MEDI SELF CONNECT PLUS.” The plaintiff promoted/advertised its product extensively and acquired a good market through various industry magazines and due to the said advertisement, it had generated enormous sales and that the plaintiff was able to capture a significant market share. According to the plaintiff in or about February, 2015, the plaintiff learnt from trade sources that there was a fraudulent and obvious imitation of their product being sold in the market and on an enquiry, it was revealed by the plaintiff that these goods were marketed in uncanny resemblance to that of the plaintiff's self connect tubes and the deception was apparent to the eye. The plaintiff learnt that one Hariom Metal and Tubes i.e. the defendant no. 1, was manufacturing t