( 1 ) IA No. 4266/99 is an application filed by the Plaintiff under Order 39 Rule 1 and 2 of the Code of Civil Procedure, while IA No. 5295/99 is an application filed by the Defendant under Order 39 Rule 1 of the Code of Civil Procedure.

( 2 ) THE case of the Plaintiff is that it has obtained a registration of a design of a bollard with effect from 21/09/1988 under Registration No. 177437. A bollard is actually a road safety marker. The design of the Plaintiff consists of a rhombus with nine reflectors inside it. Below the rhombus arc the words dark EYE . Below these words is a circular disk with an arrow pointing towards the road and below the circular disk is a pole. The entire unit is called a bollard.

( 3 ) THE Plaintiff also claims to have obtained registration of the design of a delineator with effect from 21/09/1988 under Registration No. 177438. A delineator is also a road safety marker and consists of a circular reflector on a pole. The circular reflector is covered by a cage to protect it from damage or theft.

( 4 ) THE Plaintiff has attached the registration certificates as well as photographs of a bollard and a delineator designed by the Plaintiff along with the plaint.

( 5 ) THE Defendant is also manufacturing bollards and the admitted position is that the bollard of the Defendant also consists of nine reflectors in a rhombus. This rhombus is placed upon a pole. In other words, the difference between a bollard of the plaintiff and the Defendant is that in the case of the Defendant the words dark eye and the circular disk with an arrow is missing. The Defendant is also manufacturing delineators and as per the photographs annexed to the plaint the design of the delineator is the same, namely a circular reflector on top of a pole.

( 6 ) ACCORDING to the Plaintiff, it had conceived both designs and had applied for their registration which was granted to the Plaintiff without any objection. The Plaintiff says that the Defendant is infringing the designs Of the Plaintiff and, therefore, an injunction should be granted restraining the Defendant from manufacturing bollards and delineators which infringe the design of bollards and delineators designed by plaintiff.

( 7 ) ACCORDING to the Defendant, these items are of common use as road safety markers in Korea and Japan. The Defendant is aware of these items and had even obtained catalogues and samples of these items prior to the application filed by the plaintiff for registration of the designs.

( 8 ) BEFORE considering the various submissions of learned counsel for the parties. it would be worth noticing that Section 43 of the Designs Act, 1911 provides for the making of an application by any person claiming to be the proprietor of any new or original design not previously published in India. A design when so registered will be effective from the date of the application for registration. Section 51-A of the Designs act, 1911. provides for the cancellation of a registration already granted. The registration of a design may be cancelled if the design has been previously registered in India or it has been published in India prior to its registration or if the design is not a new or an original design.

( 9 ) THE Defendant has taken no steps to have the design of the Plaintiff cancelled on any of the grounds mentioned in Section 51-A of the Designs Act, 1911.

( 10 ) HOWEVER, before me the contention of learned counsel for the Defendant is that both the designs have been published in India prior to the dale of the application of the Plaintiff and the design is not a new or an original design.

( 11 ) LEARNED counsel for the Defendant has sought to place reliance on certain brochures and catalogues said to have been received by him from Korea and Japan to show that bollards and delineators were in use in those countries several years ago. While this may be so, these brochures relied upon by the Defendant do not indicate the date of publication. In any case, there