V. KAMESWAR RAO, J.

IA 20070/2015

1. Vide this order, I shall dispose of IA 20070/2015 filed by the plaintiff under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908.

2. Vide this application, the plaintiff seeks to delete paragraph 14 of the plaint and substitute the same with the following paragraph.

"14. That prior to 2010, the Plaintiff had been using various registered designs of air coolers bearing nos.183511, 180555, 213308 and 213309, with the air cooler model under registered mark 'Sumo'. The Registrar has duly registered the unique design of the air cooler and granted it Design No.227069, w.e.f 04.02.2010. The Plaintiff started using the registered Design No.227069 for its model 'Sumo' from the month of November 2010, after its registration. The Plaintiff has been using the Registered Design Nos.235189 and 198241 for its air cooler models 'Storm' and 'Winter' since March 2011 and February 2005 respectively, after THEIR Registration."

3. Plaintiff further seek to add paragraph 14A in the plaint, which is also reproduced as under:-

"14A. Over the years, the said models of the Plaintiffs air coolers have become the most popular air coolers sold in the marketplace, as demonstrated by the sales figures contained in the Plaintiffs audited annual reports, and reproduced hereunder:-

4. It is the submission of Mr. Virmani, learned Senior counsel for the plaintiff, that the plaintiff, has, in the table in paragraph 14 of the plaint mentioned that 'Symphony Sumo' is in use since the year 2003. According to him, the trademark 'Symphony Sumo' which was in use since the year 2003 and not the registered design No.227069. He would also state, that the design No.227069 was used only after registration i.e. in November, 2010. It is also his submission that prior to the said registration of the design, the plaintiff was using various registered designs bearing nos.183511, 180555, 213308 and 213309, with the air cooler model under mark 'Sumo'. The first model of 'Symphony Sumo' with the registered design No.227069 was sold on November 24, 2010. According to him, the plaintiff inadvertently, in paragraph 14 of the plaint did not explicitly bring out this position. He states, the Court, in its order dated May 28, 2015 read the said paragraph to mean that the design No.227069 was pre-published on the date of registration, which is not true. He also states, that the plaintiff has also mentioned in the table at paragraph 14 of the plaint that ‘Symphony Winter’ is in use since the year 2004. The plaintiff submits that the design No.198241 was used only after registration, i.e. in the year 2005. According to him, while the plaint was being drafted, sales figures of 'Winter' from the financial year 2004-05 commencing from July 01, 2004 to June 30, 2005 were provided to the Advocate. However, though 'Winter' model is available since February 2005, due to oversight, the aforesaid mistake was not noticed by the plaintiff. The fact is that, the first model of 'Winter' with the registered design No. 198241 was sold on February 9, 2005 after its registration effective from January 20, 2005. The plaintiff, has inadvertently in para 14 of the plaint states that the design No. 198241 is available since 2004, which is not true as figure shown in para 14 of the plaint is for the entire year 2004-05. The Hon'ble Court passed its order dated May 28, 2015 based on the observation that 'Winter' was pre-publis