The absence of a specific provision for injunction in the Designs Act and the implications of pending applications for cancellation of registration were central to the court's decision.

JUDGMENT :

V. Ramasubramanian, J.

O.A. No. 360 of 2010:-

1. Original Application praying that this Hon'ble Court be pleased to pass an order of ad-interim injunction restraining the Respondents, their Servants, agents, distributors, stockists or anyone acting under or through it from in any manner manufacturing or marketing Flasks with the designs which are identical with or deceptively similar to the Applicants Registered Design Nos. 174903 & 174904 from being pirated pending disposal of the above suit.

This Original Application coming on this day before this court for hearing the court made the following order:

Pending suit for a permanent injunction restraining the defendants from manufacturing or marketing flasks with the designs which are identical with or deceptively similar to the plaintiff's registered design Nos. 174903 and 174904, the plaintiff has come up with the above application for an interim order of injunction restraining the respondents from committing infringement of the copyright that the plaintiff holds as registered design.

2. Heard Mr. S.P. Chockalingam, learned counsel for the applicant/plaintiff and Mr Shailen Bhatia, learned counsel for the respondents/defendants.

3. The plaintiff is a company engaged in The manufacture of flasks under the trade name "Eagle". It is claimed by the plaintiff that they had developed a novel design of flask, referred to as a Air Pot lisa Flask, in the year 1997, having several novel features in the shape, configuration and surface pattern. In order to protect the unique design and novelty of the flask, the plaintiff applied for registration under the Designs Act, 1911. The designs were accepted and registered with the design registration Nos. 174903 and 174904 dated 27.10.1997 in Class 3 and Class 1 of the old Act.

4. It is the case of the plaintiff that in July 2009, they came to know that the first defendant had pirated its registered design and were manufacturing and marketing a deceptively similar product, whose service pattern and configuration were deceptively similar to that of the plaintiff. Therefore, contending that the same amounted to infringement of their rights, the plaintiff has come up with the above suit, along with the application for an interim order of injunction.

5. On 30.3.2010, when the application for interim injunction was moved for ad-interim exparte order, this Court ordered only notice to the respondents. Thereafter, the respondents have filed a counter and I have heard the learned counsel on both sides and perused the documents filed.

6. Though the first respondent has raised several contentions in the counter affidavit, I am of the view that one important contention raised by them is sufficient for the disposal of the application for injunction without much ado. In the counter affidavit filed on behalf of the first respondent, it is claimed, apart from other things, that there are several distinctive features in the vacuum flask manufactured by the first respondent and that the partner of the first respondent firm, by name Mr. Raman Gupta has himself obtained registration of design of the vacuum flask manufactured by the first respondent under Class 07-01 with registration No. 218346. The registration was obtained by the partner of the first respondent on 03.9.2008.

7. While it is true that the applicant/plaintiff holds registration of their flask under design registration Nos. 174903 and 174904, as borne out by the plaint documents, it is equally true that Mr. Raman Gupta, the partner of the first defendant, also holds the registration of the design of the vacuum flask manufactured by the first respondent, as disclosed by document No. 3 filed on the side of the respondents. It is claimed by both parties that both parties have filed applications before the Controller of Designs for the cancellation of the registration of each other and the proceedings are pending. In such circumstances, I am of the considered view that both of them are not entitled to