JUDGMENT

Amit Bansal, J.

I.A. 11006/2018 (O-XXXIX R-1 & 2 of the CPC)

1. By way of the present judgment, I shall decide the captioned application filed on behalf of the plaintiff company under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC).

2. The present suit has been filed seeking relief of permanent injunction restraining the defendant from infringing the registered design of the plaintiff company along with other ancillary reliefs.

3. Reply to the interim application was filed on behalf of the defendant on 28th August, 2018 and the rejoinder thereto has also been filed by the plaintiff company.

4. On 30th January, 2023, I.A.2211/2023 under Order VI Rule 17 of the CPC was also moved on behalf of the defendant for amendment of the written statement. The said amendment was sought in order to incorporate an objection based in law relating to the suit design not being registrable under the Designs Act, 2000 (hereinafter `Designs Act'). While keeping open the right of the plaintiff company to raise objections to the amendment sought by the defendant, vide order dated 1st March, 2023, I.A.2211/2023 was allowed.

5. Arguments were heard on 17th January, 2023, 6th February, 2023, 27th February, 2023, 1st March, 2023, 15th March, 2023 and 23rd March, 2023, when the judgment was reserved in the captioned application. Subsequently, written submissions have also been filed on behalf of the parties.

CASE SET UP IN THE PLAINT

6. The case set up by the plaintiff company in the plaint is as follows:

6.1. The plaintiff company is part of the "Hero Group" and is engaged in the business of manufacturing and selling of automobiles, spare parts, fittings and accessories thereof.

6.2. One of the motorcycle models being sold by the plaintiff company is the "HERO HF DELUXE" motorcycle. The plaintiff company also sells front fenders for the said motorcycle model. The design of the front fender of the plaintiff company is a registered design bearing Registration No.271199 registered on 7th April, 2015.

6.3. In the registered design of the plaintiff company's front fender, the surface of the front section is elevated, forming a "V" shape design and has slightly elongated sides, which give a distinct and aesthetic look to the fender.

6.4. Sales figures of the plaintiff company pertaining to the "HF DELUXE" motorcycles with the suit fender as well as the sales figures from the independent sale of the suit fender from the year 2015-2016 to 2018- 2019 are provided in paragraph 12 of the plaint. The plaintiff company has also provided their advertisement and publicity expenses in paragraph 13 of the plaint.

6.5. In June 2018, the plaintiff company became aware of a front fender similar to their own, being manufactured by the defendant and sold in the market. Upon examination, the plaintiff company discovered the front fender of the defendant sold as "HF DLX TYPE" to be a copy of the registered design of the plaintiff company.

6.6. The "HF DLX TYPE" front fender of the defendant clearly refers to the plaintiff company's motorcycle sold under the name "HERO HF DELUXE", on which motorcycle such front fender can be set.

6.7. The defendant's replication of the registered design of the front fender of the plaintiff company is an act of piracy of the registered Design No.271199 of the plaintiff company.

6.8. The replication and infringement of the registered design of the plaintiff company by the defendant is dishonest and mala fide. The similarities between the two products are so close and exact that the adoption by the defendant of its front fender design is, without a doubt, fraudulent and tainted with dishonesty.

6.9. Due to continuous and extensive use and publicity of the suit design, the plaintiff company has acquired immense goodwill and reputation and the design of the front fender has come to be exclusively associated with the plaintiff company by the members of the public and the trade. Thus, the design has become a source i