JUDGMENT :

C. HARI SHANKAR, J.

REVIEW PET. No. 18/2023 (for review of Order dated 04.01.2022) in C.S. (COMM) No. 567/2021

1. By this petition, the review petitioner/defendant in C.S. (Comm) No. 567/2021, seeks review of the judgment dated 4th January 2023, passed by this Bench in I.A. No. 14683/2021, preferred by the defendant under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC), whereby the said IA stands dismissed.

2. Paras 2 to 4 of the present Review Petition, which set out the ground for review may be reproduced thus:

“2. By way of the present application, the Appellant seeks review of the final order dated 04.01.2023 passed by this Hon’ble Court on the ground that the counsel for the Defendant failed to cite a binding precedent namely, Reckitt Benckiser India Ltd. vs. Wyeth Ltd. FAO (OS) No. 458/2009 which leads to an error apparent on the face of the record. The judgment of the Hon’ble Supreme Court in the case is a leading authority which holds that “publication in tangible form [...] or in any other way” as given under Section 4(b), Designs Act, 2000 does not refer to an actual product only, but could be in any other way such that the shape or other features of the article are made clear to the eye.

3. Vide final order dated 4.01.2023, this Hon’ble Court was pleased to record in Para 45 that “Concept 6 design was a mere concept in the form of a computer image. Such a computer image cannot constitute a depiction of the design in a tangible form, so as to enable the court to apply the design and visualize the final product which would emerge by application of the design.”

4. It is most respectfully submitted that the Ld. Full Bench of the Hon’ble High Court of Delhi in Reckitt Benckiser India Ltd. vs. Wyeth Ltd. (supra) categorically holds that different view which stands binding on this Hon’ble Court qua the present matter. A copy of the said judgment is annexed herewith as DOCUMENT-2. The relevant portion is reproduced herewith:

19(i). In our opinion the expression “tangible form” refers to a specific physical form or shape as applied to an article and not the mere ability to replicate, convert and give a physical shape to the design, though of course to fall under the expression “tangible form ” it is not necessary that the article should have been used, but the expression “in any other way” takes some of its colour from the words “used” or “tangible form.” The principle of Nositur a Sociis will be applicable. Section 4(b) therefore, not only, requires publication but it should be publication by use, in tangible form or in any other way. The expression “any other way” here is wider in context and takes into its ambit a design which has been created though not still put to use or exists in tangible form but at the same time it is guided by the words “use” and “tangible form.” Thus, to disqualify a claim for registration or cancel registration of a design in India, the publication abroad should be by use, in Tangible form, or in some other way, means that the design should not be a factum on paper/document alone, but further that the design on paper should be recognizable i.e. have the same impact in the public as a furnished article will appeal when judged solely by the eye [See Section 2(d)]. Putting it differently if the design is on paper then it must exist upon a piece of paper in such a way that the shape or other features of the article are made clear to the eye. The visual impact should be similar to when we see the design on a physical object i.e. an object in tangible form/in use. As noted otherwise in the present judgment, registration of a design is article specific and thus-depending on the facts of each case registration or publication of design of a particular article may or may not necessarily result in rejection or cancellation of registration of the same or similar design on another article. The Act protects the original artistic effort not inform of an idea or on its own as an artistic