IMPORTANT POINT
Design on wrapper or design of a product may be registered under Designs Act with corresponding registration under Copyright Act also.

Rajesh H. Shukla, J.—The present O.J. Appeal is directed against the impugned judgment and oder passed in Civil Suit No. 2 of 2015 by this High Court (Coram: S.R. Brahmbhatt, J.) dated 5.5.2015 in a matter under the Designs Act, 2000 regarding the infringement, etc. on the grounds stated in the Memo of the Appeal.

2. It is contended, inter alia, that the interim relief restraining the appellant and respondent Nos. 2 & 3 original defendants from marketing, selling, advertising directly and/or indirectly dealing in air cooler on the ground that it is similar to the registered design of the respondent is contrary to law as well as the material on record. It is contended that the learned Single Judge has failed to appreciate that the High Court of Gujarat had no jurisdiction to try and entertain the suit under sec. 22 of the Designs Act, 2000 read with sec. 20 of the Civil procedure Code, 1908 as it is a composite suit. It has been contended that the learned single Judge has failed to appreciate that the suit filed on behalf of the plaintiff was on mere apprehension of sale of goods in Ahmedabad which may not be giving rise to the cause of action in Ahmedabad. It has also been specifically contended that the provisions of sec. 62 of the Copyright Act and sec. 134 of the Trade Marks Act could not have been referred to seek any analogy for the purpose of the present suit. It is contended that appellant-original defendants were operating from Mumbai and the territorial jurisdiction therefore lies with the court at Mumbai. It is further contended that the learned Single Judge has failed to appreciate the provisions of the Designs Act, 2000 and has failed to appreciate that the design of the respondent-original plaintiff were not new, unique and are common to the trade and therefore it is hit by the provisions of sec. 4 of the Designs Act. It is contended that presumption can be drawn that the registered design holder had passed the test of sec. 4 for the purpose of registration and therefore the present suit has been filed.

3. Heard learned Sr. Counsel Shri RS Sanjanwala appearing with learned advocate Ms. VD Nanavati for th appellant-original defendant No.1 and learned Sr. Counsel Shri Mihir Thakore appearing with learned advocate Jatin Trivedi for the respondent-original plaintiff.

4. Learned Sr. Counsel Shri Sanjanwala referred to the papers and tried to emphasise that no cause of action can be said to have arisen and the suit is based merely on apprehension and therefore it is not maintainable. He submitted that in any case this court will not have the territorial jurisdiction as the court at Mumbai would have the jurisdiction as the appellant-original defendant has been operating from Mumbai. Learned Sr. Counsel Shri Sanjwanwala submitted that it is a quia-timet action and prima face it has to be established about the jurisdiction.

5. In support of his submission, learned Sr. Counsel Shri Sanjanwala referred to and relied upon the judgment of the Hon’ble Apex Court reported in in the case of Dhodha House v. S.K. Maingi, (2006) 9 SCC 41: [2005] 8 Supreme 522 and emphasised the observations made in the judgment, particularly para 19. He submitted that the cause of action is a bundle of facts which are necessary to be proved. It was submitted that the Trade Marks Act as well as the Copyright Act provide that a suit could be filed by the plaintiff where he carried on his business which is not the case so far as the Designs Act, 2000 is concerned. He, therefore, strenuously submitted that the issue regarding jurisdiction has to be considered on the basis of the provisions of sec. 20 of CPC and no analogy could be drawn from other statues. In support of this submission, referring to the aforesaid judgment in the case of Dodha House v. S.K. Maingi, AIR 1981 Delhi 95. he has tried to submit that no composite suit could have been filed in the High Court of Gujarat.

6. Learned Sr. Counsel Shri Sanjanwala, therefore, submitted