In a suit for infringement of a registered design, the court will not normally grant an interlocutory injunction where there is a serious question to be tried as to the validity of the design and the balance of convenience lies in favour of refusing the injunction.

( 1 ) THE cooking gas or L. P. G. , as it is called, has brought about a revolution in the home. Most housewives find it convenient to use the gas stove. They are so much in fashion these days. Now complete cooking range is on sale. This case raises the question of copywright in the registered design of a cooking range which is sold under the brand name of "kitchenette".

( 2 ) THESE are the facts. The Plaintiffs (the present appellants ). M/s. Niky Tasha India Private Limited brought a suit for permanent injunction against the defendants (the present respondents ). M/s. Faridabad Gas Gadgets Private Limited complaining of infringement of their registered design No. 152986 dated 11-4-1983 pertaining to the product known as a KITCHENETTE which is a combination of gas burner, grill and oven. The plaintiffs got registration with regard to shape and configuration in this product of theirs. It is alleged that the defendants under the name of NAVJYOTI are manufacturing, selling and advertising LPG gas cooking range similar in design to the registered design of the plaintiffs.

( 3 ) THE plaintiffs made an application for temporary injunction in the suit under Order 39 Rules 1 and 2 Civil Procedure Code restraining the defendants from selling, manufacturing and advertising their product NAVJYOTI. The learned Judge refused the injunction on the ground that the defendants product is provided with a lid which makes it totally distinguishable from the product of the plaintiffs. He also noticed one other difference in the two products. The burner element of the plaintiffs product is of the shape, of a ring while the burner element in the defendants product does not have any hole and is round inshape at the top. So the learned Judge by order dated 19-12-83 dismissed the application. From his order, the plaintiffs appeal to this Court.

( 4 ) WE have seen the two products carefully. Counsel for the plaintiffs says that the test is the "eye appeal". The article must appeal to the eye, in the sense of catching or attracting the eye particularly the eye of a potental buyer. He says that the defendants NAVJYOTI is a "fraudulent or obvious imitation" of KITCHENETTE.

( 5 ) THE defendants, on the other hand, have raised a large number of defences to the plaintiffs, suit. In the first place, it is said that the plaintiffs design is a very recent one. The application for registration of the design was filed by the plaintiffs on 11th April, 1983. The date of issue of the certificate is 19th October, 1983. Immediately, on 17th November, 1983, the plaintiffs brought the suit against the defendants. In the second place, it is said that there is nothing "new and original" in the plaintiffs design because such a design was already known to the trade. Thirdly, it is said that the defendants had brought out a gas cooking range somewhat smaller in size as early as January, 1983 with IST mark from which the plaintiffs took the idea and improved upon it in bringing out their KITCHENETTE. Fourthly, it is said that the registered design was re-published in India. In the issue of April 15, 1983 of a popular magazine known as India Today , the plaintiffs advertised at page 120 their product known as gas and Grill . It is said that KITCHENETTE is only a trade variant of the various models of Gas Stoves manufactured in Japan and India which were well known to the trade. The application for registration, as I have said, was made on April 11, 1983 and the issue of April 15, 1983 came on the stalls a few days before the said date and in any case, the advertisement was given long before the publication of the magazine. In the same magazine, we find that there are advertisements of the competitors e. g. NAVJYOTI at page 36, SUNFLAME at page 43 and HOTLINE at page 81. They are all Gas Stoves and Grills. Now there is Oven also in the new cooking range. On the basis of these advertisements, it is said that there was pre-publicationof the design which