Designs must be novel to qualify for protection; prior publication invalidates claims of infringement, as seen in the ruling.

JUDGMENT

Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.

I.A. 5666/2021(for stay) & I.A. 9205/2021(u/O XXXIX RULE 4)

2. These are two applications, one for interim injunction filed by the Plaintiff under Order XXXIX Rules 1 & 2 and one for vacation of stay filed by the Defendants under Order XXXIX Rule 4 CPC.

3. The Plaintiff- M/s Dream Care Furnishings Pvt. Ltd. has filed the present suit seeking permanent injunction restraining infringement and passing off in respect of 17 design registrations falling in class 6-13 in respect of "Bedsheet (Blanket and other covering material)" which are registered in its favour. The said suit has been filed against Defendant No.1- M/s Meena Enterprises and Defendant No.2- Sant kumar Goyal, who operate under the trading name & style `Stylista'. The suit was filed on the basis of the design registrations which date back to 16th October, 2018, 26th October, 2018 and 6th January, 2020.

4. The case of the Plaintiff is that it has huge sales of products based on these designs to the tune of approximately Rs.20 crores in the year 2019- 2020 till the month of February. The said designs are used upon various covering materials for appliances as also dining table covers, bedsheets, blankets, etc. In the second week of December, 2019, the Plaintiff noticed that the Defendants were offering products for sale bearing the registered designs of the Plaintiff. A legal notice dated 10th December, 2019 was addressed by the Plaintiff to the Defendants asking the Defendants to cease and desist from using design similar to Plaintiff's design. In its reply dated 10th January, 2020, the Defendants took the stand that the Plaintiff has got the designs registered fraudulently as the said designs existed for the last several years and were manufactured and distributed by companies at large.

5. Thereafter the present suit was filed before the District Judge (Commercial Court-01), South East/Saket Courts, New Delhi (hereinafter "Commercial Court"). Vide an order dated 14th January, 2021, the Commercial Court granted an ex-parte ad-interim injunction order against the Defendants and appointed a Local Commissioner to visit the premises of the Defendants and seize the impugned products. The operative portion of the order reads as under:

"18. On perusal of the comparative designs of the defendant viz a viz registered designs of the plaintiff, it is noticed that broad features and shape, configuration, pattern etc. are the same or nearby the same and prima-facie establish the fact that it is a case of imitation of registered design of the plaintiff by the defendant. The plaintiff has thus made-out a strong prima-facie case in its favour. Since, the plaintiffs right in the registered design has been infringed by the defendant, therefore, balance of convenience required that the defendant be restrained from using the plaintiffs registered design. Since there is infringement of copyright of the plaintiff as per law laid down by Hon'ble High Court of Delhi in "Dart Industries Inc and Ors. Vs. Polyset Plastics Pvt. Ltd. and Ors (supra)", the injunction should be granted as a matter of course as damages would not be adequate remedy. The interim application of the plaintiff under Order 39 Rule 1 and 2 CPC is allowed and defendants are accordingly restrained from and also through their individual partner (if any), proprietors, agents, servants, representatives, distributors and all others acting on their behalf from using, manufacturing, selling offering for sale, advertising or displaying directly or i