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1977 Supreme(Del) 163
High Court Of Delhi
GLOBE SUPER PARTS - Appellant
Versus
PARAMOUNT ELECTRICALS - Respondent
Interim Application 2518 of 1977
Decided On : 12/23/1977
K.L.AGARWAL, M.L.MANGALA, N.K.ANAND
A design is not eligible for registration under Section 43 of the Patents and Designs Act, 1911, if it has been previously published in India.
Headnote:
DESIGN ACT, 1911 - SECTIONS 43, 51-A - INFRINGEMENT OF REGISTERED DESIGN - INTERIM INJUNCTION - PRIOR PUBLICATION - SHAPE AND CONFIGURATION OF GAS TANDOOR - ADVERTISEMENT AND SALE OF GAS TANDOOR BEFORE REGISTRATION - WHETHER PRIOR PUBLICATION - WHETHER DESIGN NEW AND ORIGINAL.
Fact of the Case:
Plaintiff, Globe Super Parts, filed three suits against different defendants for infringement of registered design, copyright, and passing off of their Gas Tandoor. The defendants contended that the design was not new or original and was prior published before registration. The plaintiff sought interim injunctions to restrain the defendants from manufacturing, selling, or passing off the infringing Gas Tandoor.
Finding of the Court:
The court found that the advertisement published by the plaintiff on January 2, 1977, and the sale of three Gas Tandoors on January 1, 1977, constituted prior publication of the design. The court held that the design was not new and original as required under Section 43 of the Patents and Designs Act, 1911.
Issues: 1. Whether the advertisement and sale of the Gas Tandoor before registration constituted prior publication. 2. Whether the design was new and original as required under Section 43 of the Patents and Designs Act, 1911.
Ratio Decidendi: The court relied on the provisions of Section 43 of the Patents and Designs Act, 1911, which requires a design to be new and original and not previously published in India to be eligible for registration. The court held that the advertisement and sale of the Gas Tandoor before registration constituted prior publication and that the design was therefore not new and original.
Final Decision: The court dismissed the plaintiff's applications for interim injunctions in all three suits and vacated the ex-parte interim injunctions previously granted. The court also dismissed the defendant's application to drop the proceedings against it.
( 1 ) AS common questions of law and fact are involved in I. As. 2057 and 2518 of 1977 in Suit No 505 of 1977 {globe Super Parts v. Para-mount Eleciricals and another), 1. As. , 2050 and 2473 of 1977 in Suit No. 502 of 1977 (Globe Super Parts v. V. K. Saggi Industries and another) and I. As 2055 and 2353 of 1977 in Suit No. 504 of 1977 (Globe Super Parts v. Indian Electricals and others), they will be disposed of by this one order. In all the three suits plaintiff is the same and reliefs sought against the various defendants are also identical.
( 2 ) GLOBE Super parts, a partnership firm, filed suit No 505 of 1977 against Paramount Electricals and Hamnami Store, defendants, on 5-7-1977 alleging that the plaintiff firm manufactures and sells Gas Tandoors of an exclusive type, which had been introduced and marketed for the past about six months. It further alleged that prior to the production of the said Tandoor by the plaintiff, the said item was never known in India or anywhere else in the world. The salient features of this Tandoor are mentioned as under :-
"a hoolow round metallic body having a detachable dome-shaped cover. The said body being fixed upon a supporting ring with central opening. The base of the oven body being chimney-shaped with central opening at the top over which a dome-like hood is fixed, such that when the said oven is placed on the stove or a gas burner, that hot air is sucked in by the chimney action at the base and strikes the dome-like hood fixed over the top from where it is deflected and evently distributed inside the body and then escapes out through the ducts provided in the said hood thus heating the entire inside body of the tandoor . It was further alleged that apart from the aforesaid distinctive features, the shape and the configuration of the TANDOOR manufactured by the plaintiff are new and original, and are protected under Registered Design No. 145258 under Design Act, 1911. It is further added that by virtue of the prior use and the reputation so acquired and also on account of very wide publicity given by the plaintiff firm to its products it has a right to the exclusive adoption and use thereof and that no one else is entitled to adopt its features, get-up, layout and arrangement and to give an impression as if the Gas TANDOOR so manufactured was that of the plaintiff firm or connected with it or its business".
( 3 ) IT is further stated that Paramount Electricals (defendant No. 1) is the manufacture, while Hamnami Store (defendant No. 2) is the seller of the impugned products. It is alleged that the defendants have adopted identical and/or deceptively similar features to those of the plaintiff and have marketed Gas TANDOOR which infringes the plaintiff s Registered Design No. 145258, and that both the shape as well as the configuration of the plaintiff s design have pirated by the defendants.
( 4 ) IT is further added that the defendants have marketed the infringed products from June, 1977 in spite of having full knowledge about the prior product of the plaintiff s manufacture ; that the product of the defendants is inferior to that of plaintiff, both in material as well as in its workmanship, and that the defendants have adopted nearly all the distinctive features belonging to the plaintiff which act amounts to passing off. In this way it is alleged that the defendants have put the plaintiff to heavy loss in business and have also effected the reputation acquired in the trade. The plaintiff firm thus prayed for the grant of permanent injunction restraining the defendants from manufacturing, selling and offering for sale and directly or indirectly dealing in Gas TANDOOR which is fraudulent or obvious imitation of the plaintiff s Gas TANDOOR Registered Design No. 145258 and from doing anything with a view to enable the Registered Design belonging to the plaintiff to be so applied. The plantiff further prayed for the grant of permanent injunction restraining the defendants, th
