The registration of a design can be cancelled if the subsequent design is substantially the same as the earlier design.

ORDER :- This is an application under S. 51-A of the Indian Patents and Designs Act (II), 1911, in which the petitioner has prayed for an order that the Design No. 127199 in respect of a Cycle lock registered in the name of the respondent on October 10, 1965 be revoked and/or cancelled.

2. The petitioner is a registered partnership firm and carries on its business at No. 9206, Nawabgunge Library Road, Delhi 6. The said firm is the proprietor of a design duly registered under the said Act as Design No. 125728 of May 25, 1965. The said design, was and is in respect of locks for cycle and the novelty or the originality was in respect of the shape and configuration of the design of the said locks for cycle as illustrated in the annexure to the certificate of the Controller of Patents and Designs dated May 25, 1965 which are annexed to the petition and collectively marked "A". After such registration, the petitioner has been manufacturing commercially the said cycle locks and selling them to the public which involve, according to the petitioner a new and original design as to the shape and configuration of the outer frame of cycle lock comprising inter alia, the visibility of the outer portion of the devices of lock, i.e., protruding portion of the lock cylinder in which key is inserted for operation it is the petitioner's case that prior to the introduction of the said design of the lock and its registration it was a common practice in the trade to have the cycle locks having keys on a side of the locks in the plain surface on the main frame of the cycle-locks and without any raised portion. The respondent is also claiming to have a monopoly in the right to manufacture and sale of cycle locks of a design closely similar to or identical with that the petitioner's registered design No. 125728. A photograph of the cycle lock relating to the said design registered in the name of the respondent is annexed to the petition and marked "B". The petitioner has challenged the validity of the said design No. 127199 dated October 10, 1965 registered in the name of the respondent on several grounds set out in paragraph 10 of the petition and, as stated earlier, has prayed for the cancellation of the same.

3. The respondent's case, as set out in the affidavit of Sri Awtar Singh, may be stated as follows : The petitioner's design No. 125728 is not a new or original design; it is a common design previously published in India. It is merely an arrangement of well known design of Chinese origin and is an exact copy of the Cycle locks marketed by Chinese firm under the trade description "Wing". The respondent had no knowledge of the petitioner's design inasmuch as no publicity was given by the petitioner of their design. Further, the petitioner has obtained registration of their design on misrepresentation of facts and, as such, the registration is illegal and invalid. Lastly, the respondent has submitted that the petitioner is rot entitled to get the revocation or cancellation of the respondent's design inasmuch as the respondent's design is original and new and is in no way similar to or identical with the petitioner's design and, as such, the respondent has committed no piracy of the petitioner's registered design.

4. Mr. Sankar Ghosh, learned counsel for the petitioner has drawn my attention to S. 51-A(1)(a) of the Indian Patents and Designs Act, 1911 and has contended that his client prays for cancellation of the registration of the respondent's design on all the three grounds mentioned in the said subsection. According to him, the petitioner's design has been registered in India on May 25, 1965 whereas the respondent has got his design registered on October 10, 1965. Further, the publication of the petitioner's design has been done long prior to the date of the registration of the respondent's design. Lastly, Mr. Ghosh has urged that the respondent's design is not a new or original design. According to him, it is not necessary that the res