The imitation of a registered design may constitute an infringement of copyright in the registered design.

1. IN this application the petitioner has asked for protective orders relating to the petitioner's copyright in a registered design. The design is in respect of a container. The design has been registered under the Designs Act, 1911 (hereinafter referred to as the 1911 Act). It is the petitioner's case that it had developed a non-metallic container having a unique, novel and distinctive shape and configuration which is the design in question. It is said that the design was developed after considerable research and expenditure by the petitioner. The petitioner states that since December, 1991 the petitioner had been selling premium brand motor oil in the specially designed container. It is said that the petitioner incurred substantial expenditure in promoting the product in those containers. It is further said that the specially designed containers were exclusively associated with the petitioner's product. The petitioner's grievance is that the respondent no. 1 has been wrongfully manufacturing and using the registered design of the petitioner in respect of container in which the respondent no.1 was selling automotive lubricants. The respondent no. 2 is the selling agent/distributor/dealer of the product manufactured by the respondent no.1. The petitioner accordingly filed a suit for inter alia a perpetual injunction to restrain the respondents from infringing pirating and enabling the infringement of the copyright of the petitioner in the registered design or from using a design on containers which was deceptively similar to the registered design of the petitioner. IN addition, the petitioner has also asked for a monetary decree against the respondent and other ancillary relief.

2. THIS application was moved on 11th October 1993 for an interim injunction in respect of the main relief claimed in the suit as also for orders to restrain the respondents from marketing their products or advertising them in containers to which the registered design of the petitioner applied. On 11th October, 1993 an interim order was passed restraining the respondent from utilising the design. An appeal was preferred by the respondent no.1 from the ad interim order before the vacation bench. The operation of the order dated 11th October, 1993 was stayed. The appeal was disposed of and the interim order was made absolute by the division bench to continue until the disposal of this interlocutory application by the trail court. The affidavits have since been filed and the matter argued at some length. Written notes of arguments have also been submitted. The petitioner has said that at least in March, 1992 the respondent no.1 had been marketing its products in containers which were totally different from those of the petitioner. The petitioner came to know in January, 1993 that the respondent no.1 was advertising its product in containers having a design almost identical with the registered designs of the respondent no.1 complaining of the infringement of the registered design. The respondent no.1 replied to the petitioner pointing out certain features which according to the respondent no.1 distinguished the containers used by the respondent no.1 with those of the petitioner. This reply was given on 26th February, 1993. According to the petitioner, it could not take any steps to protect its rights in the design for several months because of the major bomb blast in Bombay in March, 1993. It was only in September, 1993 that the petitioner caused search to be made under the 1911 Act. According to the petitioner, the Joint Controller of Patents and Designs issued a certificate on 4th October, 1993 to the effect that the design of the respondent no. 1 was similar to the designs of the petitioner. It is further submitted that upon a visual assessment of the design of the container registered by the petitioner and the design of the container used by the respondent no.1 it would be clear that the design of the respondent no.1 was an infringing copy. Sev