When there is a striking similarity between two objects, there is an infringement.

Per S.R. SINGHARAVELU, J.

This application is to vacate the ad-interim injunction granted ex parte in favour of the plaintiff on 29.3.2006 in O.A. No. 284 of 2006 in this suit.

2. The plaintiff is a company registered under the Indian Companies Act and is one of the leading manufacturers of 2 and 3 wheeler tyres in India from 1982 onwards. It has got its own design for the same. The specific trade pattern is called DRAGON tyre. The plaintiff is having a good market by manufacturing the product with the said tread pattern.

3. Now that it comes to the knowledge of the plaintiff that the respondent is also following the same tread pattern of plaintiff’s DRAGON tyre for its product. Once a design is registered, the plaintiff is entitled to have the same for a period often years and on the basis of which ex parte interim injunction was granted on 29.3.2006 in favour of the plaintiff, that is sought to be vacated by the defendant who filed this application.

4. The plaintiff has applied to the Controller of Designs at Calcutta for registration of the tread pattern as a design under the Designs Act 16 of 2000 and the same was registered on 7.6.2005 and a certificate of registration was issued on 9.12.2005.

5. Although the applicant/defendant would now contend that the tread pattern adopted by the plaintiff is not a new one, the defendant in his letter dated 25.7.2005 was said to have admitted that the tread pattern of the plaintiff’s tyres is slightly a new thinking.

6. The definition of a design under Section 2(d) of the Act would show that a design is only a configuration, shape or other features. It is not necessary that the entire product should be new. It is the shape, configuration, pattern, ornament, lines or a combination of these factors that should be a new one. In this connection, there is no other model produced before me in showing that the combination of the lines configuration and pattern adopted for tread pattern of plaintiff has been adopted by some other tyre company. An endeavour was made in showing the similarity between the plaintiff’s tread pattern and Dunlop Tyre. But I find striking variation and dissimilarity in between the two. In the absence of similar pattern it has to be found that there is some unique feature in the plaintiff’s tread pattern. Of course the plaintiff’s act of registration under the Design Act may not confer a right thereon. But to say that there was no new feature in the plaintiffs pattern cannot be accepted. It cannot also be countenanced that all tyres have buttons and that there is nothing in the shape of the button. It is not only the size of the button but also the placement of them to ultimately form a design is something unique that the plaintiff had. Again to say that it is only surface pattern that was registered and not tread pattern cannot be accepted. All surfaces of tyres will have a pattern and that pattern depends not only upon the size of the pattern but also upon its configuration or the process of placement in order to make out a particular phase to the surface. Analogously a of human mouth will contain teeth but it is upon the configuration of teeth, individuals vary. Likewise, all persons are having thumbs but their impressions make the difference. Therefore to say that surface pattern alone is registered and that the registration is quite new lend support to the applicant’s/defendant’s cases and so long as that is a particular pattern or design adopted by the plaintiff company in manufacturing the particular tyre.

7. It was held in 1999(4) Raj 419 Division Bench as follows:

“It is not necessary to break the articles down into integers for descriptive purpose but in the ultimate result it is the article as a totality that must be compared and contrasted with the features of a shape and configuration shown in the totality observable from the representation of the design as registered”.

8. It has also been held in M.R.F. Limited v. Metro Tyres Limited 1990 PTC 101 at page