S. RAVINDRA BHAT, J.

1. This appeal by the defendant (hereafter referred to as “Aashiana”), questioning the temporary ad-interim injunction issued by the learned Single Judge on 03.11.2017, in a suit by the plaintiff/respondent (hereafter “Kamdhenu”). Kamdhenu alleged that Aashiana had infringed its registered design in the sale of the latter’s FRIENDS 500 HD steel bars. Aashiana contended that Kamdhenu could not establish its registered design prima facie to be novel and exclusive from the record so as to justify the impugned ad interim temporary injunction.

2. Briefly, the case set up in the suit is that the plaintiff manufactures and markets steel bars and other allied goods under the name and trademark, Kamdhenu®. It also claimed that to distinguish its TMT bars from the other bars in the market, it developed a unique design with new and original features of surface pattern, comprising of double ribs applied to 16 bars. This development took place in 2012. Kamdhenu applied for registration under the Designs Act, 2000; its claim was accepted, and the registration was granted in Class 25-01 with effect from 14.01.2013, by certificate issued on 29.08.2014 by the Patents and Designs Controller General. Kamdhenu applied the design to its product, known as SS 10,000 TMT, which it claims is the best quality steel bar. This resulted in its ‘sole right to utilize a design in an artistic manner’ and use it for its products or adoption of any identical or similar design.

3. The suit alleged that Kamdhenu became aware in the first week of June 2017 about the infringement by Aashiana, when it came across TMT bars and leaflets relating to the defendant’s goods bearing the trademark 'Friends 500 HD' in the markets of South Delhi. The suit alleged that Aashiana applied and copied, adopted and imitated design identical to Kamdhenu’s registered design in Class 25.01 and its registered trademark. It claimed that the surface pattern on the double ribs used and applied to Aashiana’s TMT bars was identical or substantially similar to its design. These were an obvious imitation of the plaintiffs registered design and this use of the design with the intention of imitating and using the plaintiffs registered design was fraudulent and would amount to an infringement.

4. At the stage of issue of summons, the learned Single Judge also issued an ex parte injunction order. Aashiana entered defense and urged that Kamdhenu had played a fraud on the design office by misrepresenting itself as the owner and originator of the designs in question. It pointed out that the design was copied from British standard BS 4449: 2005 category B500 C. These documents, according to Aashiana were suppressed by Kamdhenu. It asserted that the design was used as a standard for reinforcement bars worldwide and was in force since 1984 and that such standard was adopted by several countries, including Germany and the United Kingdom. Aashiana asserted that Kamdhenu could not enclose or claim any monopoly rights over an impugned design, which was a mere replication of the prevailing standard in respect of the goods.

5. Aashiana argued that to comply with the BS500C standard the manufacturer had to necessarily follow the transverse rib arrangement depicted in the standard published in 1984. According to Aashiana, Kamdhenu registered design was liable to be cancelled under section 19 of the Design Act. Aashiana also stated that it was in the business of manufacture and sale of steel bars, including TMT bars, since 1998, in Gujarat; its articles are approved by the standards organization-Bureau of Indian Standards (BIS) and that the impugned articles were designed in June 2017 and Aashiana, thereafter, commenced their trial production. Samples of those goods were sent to the government approved labs for trial and testing purposes. Soon thereafter in June 2017, shape and surface pattern of the impugned product was in terms of what was prescribed by British standard BS for 49:200