The validity of design registration and challenges to it must be addressed in accordance with the provisions of the Patents and Designs Act, and the trial court's jurisdiction is limited in such matters.

( 1 ) THE suit of the plaintiff appellant the against defendant respondent complaining that the latter had sold spoons which were an obvious imitation of the spoons manufactured by the plaintiff appellant, the design of which had been registered under section 47 of the Patents and Designs Act, 1911, contrary to section 53 thereof and praying for an injunction against the defendant respondent was dismissed by the trial court. Hence this appeal

( 2 ) THE plaintiff had got registered his design on the spoons after making an application under section 43 and the registration certificate was issued to him by the Controller of Patents and Designs on 7tb February 1962. The plaintiff appellant thereupon obtained a copyright in the said design under section 47 of the Act. Section 53 makes it unlawful for any one to imitate such a registered design and sell a product bearing such design being an obvious imitation of the registered design without the consent of the registered proprietor of the design. The trial court found that the plaintiff was a registered proprietor of the design No. 111025 and also that the spoons sold by the defendant were so similar to those sold by the plaintiff in design that it was difficult to distinguish the one from the other. On this finding, the action of the defendant amounted to "an obvious imitation" of the design of the plaintiff appellant within the meaning of section 53 of the Act. The trial court, however, dismissed the suit for injunction on the ground that the designs of both the plaintiff and defendant were an imitation of a German design called SIIKEMA and, therefore, the plaintiff s design was not entitled to registration. For, under section 43 only such a design was entitled to registration as was new or original and not previously published in India.

( 3 ) THE learned trial Court did not refer to sections 47, 51 A and 53 of the Act. He relied on the decision in Qader Bakshsh v. Gulam Mohammad1 for the proposition that the registration of the plaintiff s design was not effective unless the design was proved by the plaintiff in the suit to have been one which had been not previously published in India.

( 4 ) THE learned trial Court was in error in implicitly relying on the Lahore decision which did not notice the provisions of section 51 A which was inserted by Act 7 of 1930. Section 51a makes it clear that a person interested in challenging the validity of registration of a design has to present the petition to the High Court which alone has the jurisdiction to cancel such design on various grounds including the ground that such a design had been previously published in India or that it was not new or original. In the absence of section 51a, it could be argued that even in a suit complaining of an infringement of a registered design, the defendant could raise the plea that the registration was invalid. But after the enactment of section 51a, such a plea has to be raised by an application for the cancellation of the said design Moreover, the jurisdiction for such cancellation was vested in the High Court. alone, The present suit not having been filed in the High Court, the defendant could not raise the plea about the invalidity of the design in the trial court. At the most, the defendant could have applied for a stay of the suit and made an application to the High Court under section 51a for the cancellation of the design. The defendant has done so. The decision of the trial court amounts to invalidating the registered design of the plaintiff. As such it was clearly without jurisdiction. The effect of reading sections 43, 47,51a and 53 together is that so long as the copyright conferred on the plaintiff by the registration of of the design is operatiue, he can complain of any infringement against it by the defendant. If the defendant wants to deny the validity of the registration, it has to apply for the cancellation of the registration to the High Court. In the absence of such an a