P.K.Misra: The present appeal is directed against the order dated 6.4.2005 in O.A.No.731 of 2005 arising out of C.S.No.638 of 2003.

2. The said suit was filed by the present appellants under Sec.22 of the Designs Act, 2000 (hereinafter referred to as “the Act”) for permanent injunction restraining the defendants from in any manner infringing upon the Registered Designs granted to the second plaintiff in respect of the manufacture and sale of the articles, namely, Air Water Beds, Water Beds and Squared Water Seats/Water Cushion and, directing the defendants to render true and proper accounts to the plaintiffs in respect of the manufacture or sales of the Air Water Beds, Water Beds and Squared Water Seats/Water Cushion and, consequently directing the defendants to pay damages to the plaintiffs.

3. During pendency of the suit, the appellants also filed an application for interim injunction restraining the defendants / respondents from the manufacture, sale, distribution and all other connected activities relating to the products, Air Water Beds, Water Beds and Squared Water Seats/Water Cushion, imitating the registered designs granted to the second plaintiff.

4. According to the plaintiffs, the second plaintiff obtained design registration for Air Water Beds, Water Beds and Squared Water Seats/Water Cushion on 27.11.2002. The second plaintiff, who is a technocrat involved in the inflatable business for about 20 years, invented Air Water Beds, Water Beds and Squared Water Seats/Water Cushion with novelty, originality and speciality in shape and configuration, which were subsequenty registered under the Designs Act. The basic allegation contained in the plaint as well as the application for injunction is to the effect that the products are specially designed to suit the requirement of the medical profession and the respondents, who were originally the advertising agent, manufactured similar products adopting similar designs.

5. The case of the respondents in short is that they were manufacturing water beds from 1997, much before the design was registered by the plaintiffs/appellants, and such products were being sold with trademark Madhu Medcure and Madhu Unicare. It was their contention that since their products were advertised much earlier, it can be taken that they had made prior publication of the Designs which were registered by the plaintiffs subsequently on 27.11.2002.

6. Learned single Judge on considering the rival submissions came to the conclusion that even though the plaintiffs’ products and the defendants’ products were almost similar in design and since under Section 4 of the Designs Act there is a prohibition of registration of a design which is not new or original or has been disclosed to public or used prior to the filing an application for registration and since such a defence was permissible to be taken, under Sec.22 read with 19 of the Act, no injunction can be issued. The said order is under challenge in the present appeal.

7. Learned Senior Counsel for the appellants has submitted that the learned single Judge has erroneously placed reliance upon Sec.19 of the Designs Act at the stage of considering the question of injunction.

8. At this stage, it may be necessary to notice to the relevant provisions contained in the Designs Act, 2000. Chapter II of the Act relates to Registration of Designs. It states inter alia that a design, which is not new or original or has been disclosed to the public any where in India or in any other country by publication in tangible form or by use or in any other way prior to the filing date for registration, shall not be registered. Sec.5 provides for filing of application for registration of designs and Sec.6 envisages registration to be in respect of particular article. Sec.9 empowers the Controller to grant certificate of registration to the proprietor of the design when registered.

9. Sec.19, which occurs in Chapter III, relates to cancellation of registration and it is to the

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