IMPORTANT POINTS
In view of the prohibition contained in clause (a) of Section 4 of the Designs Act, have to be decided at the trial. At the interlocutory stage, the court below need only to consider whether the plaintiff has made out a prima facie case for grant of an order of interim injunction, in view of the provisions under sub-section (2) of Section 15 of the Copyright Act, and whether the basic ingredients for grant of an order of interim injunction are in his favour. Considering the pleadings and materials on record, in the light of the law laid down in the decisions referred to supra, and also the similarities noted in Ext.C1 report of the Advocate Commissioner, it cannot be said that the plaintiff has not made out prima facie case that, pending consideration of Ext.P1 application for registration of design, he shall have copyright in the design in question, in view of the provisions under sub-section (2) of Section 15 of the Copyright Act.

JUDGMENT :

1. The appellant is the defendant in O.S. (Copy Right) No.34 of 2019 on the file of the District Court, Ernakulam, a suit filed by the respondent herein, who is the proprietor of M/s.Niel Entertainment, a proprietary concern engaged in the business of conducting exhibitions, seeking a decree of declaration that he is the copyright owner of design 'Underwater Mobile Glass Tunnel Aquarium'. He has also sought for other consequential reliefs, including a decree for permanent injunction restraining the appellant or anyone claiming through him from manufacturing, selling, advertising, exhibiting and offering for sale 'Tunnel Aquarium' using the copyright in the 'Underwater Mobile Glass Tunnel Aquarium' design.

2. Going by the plaint averments, the plaintiff is engaged in the business of conducting various exhibitions at different locations. An 'Underwater Mobile Glass Tunnel Aquarium' with unique features ensuring safety, security and portability was conceptualised, designed, constructed and exhibited by the plaintiff at various places. Nobody has got a right to replicate the same for making unlawful gain. The plaintiff filed an application for registration of the design and the same is pending consideration. In the meanwhile, the defendant, which is a company registered under the Companies Act, which is engaged in similar activities, made 'Tunnel Aquarium', a replica of 'Underwater Mobile Glass Tunnel Aquarium' of the plaintiff, and started using it in exhibitions. As the plaintiff has a copyright of the design, the defendant cannot infringe the same and therefore, suit was filed seeking the aforesaid reliefs.

3. Along with the suit, the plaintiff filed I.A.No.5546 of 2019, under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908 seeking interim injunction retraining the defendant by himself, his servants, his agents, distributors or anyone claiming through him from manufacturing, selling, advertising, exhibiting and offering for sale 'Tunnel Aquarium', using the copyright in the 'Underwater Mobile Glass Tunnel Aquarium' design, during the pendency of the suit.

4. On receipt of notice, the defendant entered appearance and filed counter affidavit in I.A.No.5546 of 2019 for temporary injunction. In the counter affidavit, the defendant denied the claim made by the plaintiff that 'Underwater Mobile Glass Tunnel Aquarium' is the brain child of the plaintiff and he has copyright of its design. According to the defendant, the concept and design of 'Tunnel Aquarium' reached his hand through one Rafeeque, who was with the plaintiff as a contractor. The concept of 'Glass Tunnel Aquariums' belongs to one Abdul Nazar of National Pets Academy, Parappanangadi, who was approached by the plaintiff for technical advice, who got several design drawings from the said Abdul Nazar, and using the same the plaintiff constructed an 'Underwater Mobile Glass Tunnel Aquarium'. The plaintiff cannot claim any copyright over the design and his request for registration of the same is not likely to be allowed. The defendant has made elaborate arrangements for conducting 'Tunnel Aquarium' show at Kannur and if interim injunction as sought for is granted, it will cause irreparable injury and hardships to the defendant. Therefore, the defendant prayed for dismissal of I.A.No.5546 of 2019 for temporary injunction.

5. Before the court below, Exts.A1 to A8 were marked on the side of the plaintiff and Exts.B1 to B13 were marked on the side of the defendant. Exts.C1 to C3 series were marked as court exhibits.

6. After considering the pleadings and materials on record, the court below by the impugned order dated 03.09.2019 allowed I.A.No.5546 of 2019 with cost and the defendant, his servants, agents and distributors or anyone claiming through him are restrained by a temporary injunction from manufacturing, selling, advertising, exhibiting and offering for sale any 'Tunnel Aquarium', using the copyright in 'Underwater Mobile Glass Tunnel Aquarium' of the