Temporary injunction denied as plaintiffs failed to establish prima facie case due to admitted similarities in designs and functionality claims, violating provisions of the Designs Act.

1. Pending the suit for permanent injunction, these two applications in O.A.Nos.814 and 815 of 2016 have been filed seeking temporary ones on the basis of infringement of a registered design and passing off. Seeking appointment of Advocate Commissioner, A.No.4773 of 2016 has been filed.

2. Heard Mr. P. S. Raman, learned Senior Counsel for Mr. T. K. Bhaskar, learned counsel for the applicants and Mr. AR. L. Sundaresan, learned Senior counsel for Mr. M. S. Bharath, learned counsel for the respondent and perused the documents and written submissions filed.

3. Before going into the issues governing the case, it would be appropriate to deal with the provisions and the principles of law. Apropos the provisions, they are placed hereunder for easy understanding:
THE DESIGNS ACT, 2000 :
3.1. S.2(d): "design" means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of S.2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in S.479 of the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of S.2 of the Copyright Act, 1957 .
3.2. S.4: Prohibition of registration of certain designs: A design which -

(a) is not new or original; or
(b) has been disclosed to the public anywhere 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, or where applicable, the priority date of the application for registration; or
(c) is not significantly distinguishable from known designs or combination of known designs; or
(d) comprises or contains scandalous or obscene matter, shall not be registered.
3.3. S.6: Registration to be in respect of particular article: (1)A design may be registered in respect of any or all of the articles comprised in a prescribed class of articles.
(2) Any question arising as to the class within which any article falls shall be determined by the Controller whose decision in the matter shall be final.
(3) Where a design has been registered in respect of any article comprised in a class or article, the application of the proprietor of the design to register it in respect of some one or more other articles comprised in that class of articles shall not be refused, nor shall be registration thereof invalidated -
(a) on the ground of the design not being a new or original design, by reason only that it was no previously registered; or
(b) on the ground of the design having been previously published in India or in any other country, by reason only that it has been applied to article in respect of which it was previously registered:
Provided that such subsequent registration shall not extend the period of copyright in the design beyond that arising from previous registration.
(4) Where any person makes an application for the registration of a design in respect of any article and either -
(a) that design has been previously registered by another person in respect of some other article; or (b)the design to which the application rel