The impugned design was not new or original in view of prior published art documents, leading to the cancellation of the registration.

1. The appeal is directed against an order dated 10th December, 2014 under Section 36 of the Designs Act, 2000 by which the application for cancellation of the design registered on 7th May, 2009 being registered design No. 222799 in respect of ‘Bottle Cap’ in Class 09-01 in the name of Anuradha Doval was allowed.

2. The novelty statement endorsed in each representation sheet reads:-

“The novelty of the said design resides in the shape and configuration of “Bottle Cap” as illustrated.”

3. The private respondent applied for cancellation of the registered design of the appellant on 24th December, 2012. The ground stated in the petition for cancellation under Section 19 of the Designs Act, 2000 were:-

“1. That the design has been previously registered in India.

2. That the design was published prior to the date of registration.

3. That the design is not a new or original design.

4. That the design is not registrable under the Act.

5. That it is not a design as defined under clause (d) of Section 2 of the Act.”

4. The private respondent has contended before the Controller that a shape and configuration claimed as novel feature of the impugned design was conventionally used by the liquor industry since many years and thereby the design features are not new or original. The impugned registration of the appellant was previously registered in India in view of previous registrations of ‘Bottle caps’ and ‘closures’ under registrations Nos. 195268, 195269, 200344, 200345 and 200682. The shape and configuration of the impugned design is stated to be common feature of all plastic caps having been published in various documents. The private respondent disclosed various documents including a magazine titled Ambrosia for issue of January/February, 2009 and submitted that in view of this prior art documents, the impugned design is neither new nor original. It was further contended that the cylindrical shape of the cap as disclosed in the impugned design is conventionally used for bottles and the said shape is absolutely dictated by the nature of the product, as the containers where the impugned design is to be used conventionally has cylindrical mouth. The grid lines in the upper part of the bottle cap are used to provide maximum grip.

5. The appellant, however, contended that the design registered has distinct features of shape and configuration and it was never made and sold in India and other countries prior to its date of registration.

6. The representation of the registration consists of three sheets depicting front/rear view in the first sheet, top view in the second sheet and bottom view in the third sheet. Novelty of the design has been claimed to be residing in the shape and configuration of the bottle cap. Disclaimer statement was provided in respect of mechanical device, or other action of mechanism or in respect of any mode or principle of construction of the article. Also colour or colour combination, letters, numerals, words or trademarks appearing in the representation were disclaimed. The Assistant Controller after considering the definition of design in Clause (d) of Section 2 of the Act held that bottle cap is an article of manufacture and capable of being made and sold separately. The design features of the article are applied by industrial process or means whether be manual, mechanical or chemical, separate or combined thereby developing a finished product. The impugned design is not a mode or principle of construction and disclaimer statement regarding same has been provided in the representations.

7. The private respondent placed evidence of several registrations of India and abroad in respect of bottle caps having cylindrical shape and grid lines. It is not corroborated that all the features of the impugned design are dictated solely by the function or functions which the article has to perform and, accordingly, the Assistant Controller construed that the impugned design is not a mere mechanical device. However, on the issu