A design must be new, original, and not a mechanical device to be protected under the Indian Patents and Designs Act.

1. These set of suits are by the Pilot Pen Co. (India) Private Ltd., against the several defendants for a permanent injunction restraining them from using the type of clip of fountain pens imitating the plaintiff's design registered under the Indian Patents and Designs Act on 28-9-1959 and for accounts of the profits they have made by the sale of their pens with infringing type of clips. The original petitions by the defendants in each of these suits is for the cancellation of the registration by a direction to the Controlled General of Patents, Designs and Trade Marks, Calcutta to remove the entry of the said registration from the register.

(2) The suits and petitions were tried together and since the points arising in the suits and petitions are common, I propose to dispose them of by a common judgment.

(3) The plaintiff, Pilot Pen Co., claims to have absolute copy right in a new and original design in respect of fountain pen clips, having registered their design under No. 101410 dated 28-9-1959 under the Indian Patents and Designs Act 1911. It is the plaintiff's allegation that the several defendants have been manufacturing and marketing fountain pens in the name and style of Champion Registered 81 "President" and "Mahtre Writer" respectively with clips exactly similar to or at any rate of colourable imitation of the plaintiff's registered design and have thus committed unlawful infringement and piracy of the plaintiff's design and that the several defendants have refused to comply with the plaintiffs demand to stop committing the infringement and submit accounts with regard to sale of these pens fitted with clips having the infringing design. It is claimed by the plaintiff that as the holder of the copy right they are entitled to prevent the defendant from manufacturing and marketing fountain pens fitted with clips of the infringing design and also to get a true and faithful account of the profits earned by them from the sale of the offending design. Hence these suits, each of which is valued for the relief of injunction at Rs. 1000 and for purposes of account at Rs. 500.

(4) In the written statement filed by Gujarat Industries Pte Ltd., the defendant in C.S. 70 of 1963, they contend that the suit is liable to be rejected in limine in the absence of necessary leave to sue under Cl. 12 of the Letters Patent. They further contend that the pen clips and the feeder point are not designs" capable of being protected or registered within the meaning of the Indian Patents and Design Act, II of 1911. There is neither novelty originally or specially in the said design and there is no question of any special distinction for the same. It is common and universal design. Even so, there is no similarly or resemblance between the clip and the neck portion used by this defendant the Gujarat Industries Pte Ltd., The user of the Fountain Pen who is literate knows that he is buying and is not likely to be deceived by any stray similarly. There can thus be no question of deception nor could there be any piracy when there is no special advantage or utility in the so-called design. The defendant in C.S. 70 of 1963, would be therefore, characterise the suit as wholly devoid of merits, thoroughly lacking in bona fides and not otherwise maintainable in fact or any law.

(5) Almost similar contentions are raised in the written statement filed by Dhiraj Pen Manufacturing Co., the defendant in C.S. 73 of 1963. They would add that a comparison of the fountain pen of theirs and plaintiff would reveal many distinguishing features and there cannot be any confusion in the minds of the public between the plaintiffs pen and the defendants pen. They assert that even if the design is similar, since the design infringed has become public jurist and become common to the trade, the plaintiff cannot lay exclusive claim over it. They also contend that the plaintiffs design is not capable of registration that it is wrongly remaining on the Registration and that t