The test for infringement of a registered design is whether the design is an obvious imitation of the registered design, and that the test is to be applied by visually examining the products of the parties and ascertaining whether the respective designs applied by them to their products is "virtually identical".

( 1 ) BY this motion dated 25th March, 1999 the plaintiff seeks inter alia an order of injunction restraining the defendants from infringing the copyright of theplaintiff in the registered design No. 173791 dated 2nd March, 1997 and from selling or offering for sale or marketing table fans/portable fans or any fans with or without the brand name "usha"/"usha Dynamo" by applying thereto the said registered design or any colourable/obvious imitation of the same; injunction restraining the defendants from passing off or attempting to pass off or causing, enabling or assisting others to pass off fans or table fans/portable fans not of the plaintiff's manufacture and for consequential orders.

( 2 ) ON the said motion I have by my ad interim order dated 25th March, 1999 restrained by injunction the defendants from infringing the registered design of the plaintiff or colourable imitation of the same. The said ad interim order is still subsisting.

( 3 ) AT the hearing of the motion after filing of affidavits it was urged on behalf of the plaintiff that the design applied by the first and second defendants ("the said defendants" for short) to the portable table fans manufactured and sold by the said defendants is an obvious imitation of its registered design applied by it to its portable table fans. What is alleged by the plaintiff is that the said defendants are guilty of piracy by infringing the copyright of the plaintiff in its registered design. This was, however, disputed by the said defendants.

( 4 ) IN order to appreciate the rival contentions of the parties one has to look at the provisions of the Designs Act, 1911 ("the said Act" for short ). The provisions of the said Act as are material for the present purpose are to be found in the following Sections :-"2. (5) "design" means only the features of shape, configuration, pattern or ornament applied to any article by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of Section 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in Section 479 of the Indian Penal Code. ""53. Piracy of registered design.- (1) During the existence of copyright in any design it shall not be lawful for any person- (a) For the purpose of sale to apply or cause to be applied to any article in any class of goods in which the design is registered the design or any fraudulent or obvious imitation thereof, except with the licence or written consent of the registered proprietor, or to do anything with a view to enable the design to be so applied; or (aa) xxxxxxxxxxxxxxxxxxxxxxxxxx (b) xxxxxxxxxxxxxxxxxxxxxxxxxx (2) If any person acts in contravention of this section, he shall be liable for every contravention- (a) To pay to the registered proprietor of the design a sum not exceeding five hundred rupees recoverable as a contract debt, or (b) If the proprietor elects to bring a suit for the recovery of damages for any such contravention, and for an injunction against the repetition thereof, to pay such damages as may be awarded and to be restrained by injunction accordingly :provided that the total sum recoverable in respect of any one design under clause (a) shall not exceed one thousand rupees. (3) xxxxxxxxxxxxxxxxxxxxxxxxxx. "

( 5 ) THE Certificate of Registration on which the plaintiff relies is at Pp. 18 to 24 of the petition and the same is to the following effect :-"1. The novelty resides in the shape, configuration and ornamentation of the TABLE FAN, as shown. 2. No claim is made by virtue of this registration in respect of any mechanical or other action of the mechanism whatsoever or in respect of any mode or principle of constr