CS(COMM) 84/2019 Page 1 of 10

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of Decision: 09.03.2021

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CS(COMM) 84/2019 & IA. 9890/2020

KENT RO SYSTEMS LTD. & ANR.

..... Plaintiffs

Through

Ms.H.Rajeshwari, Mr.Vikramjeet and

Mr.Talwaj A.J., Advs.

versus

JAIDEEP KISHNANI & ORS.

..... Defendants

Through

Mr.Neeraj

Grover,

Ms.Meenakshi

Ogra and Ms.Suvangana Agarwal,

Advs.

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

1.

This application is filed by the defendants under Order 11 Rule 1 (10)

of the Code of Civil Procedure seeking leave of the court to file additional

documents.

IA. No.9890/2020

2.

It is stated that the present suit was filed in the District Court alleging

infringement of plaintiffs’ design. In view of various grounds and defences

taken by the defendants/applicants in the written statement and in view of

Section 22 (4) of the Designs Act, 2000, the suit was transferred to this court

on 11.02.2019.

3.

It is pleaded that under the scheme of the Designs Act, a design

registration can be obtained for new or original features of shape,

configuration, pattern, ornament or composition of lines or colours applied

2021:DHC:903

CS(COMM) 84/2019 Page 2 of 10

to any article. It is stated that in the plaint the plaintiffs have nowhere stated

what exactly is the novelty claimed in respect of design Nos.262661 &

252225. All that is stated is “The product using design No.262661 being

octagonal in shape is unique”.

4.

It is pleaded in the written statement that plaintiff's design

Nos.262661 & 252225 are not novel and have been published prior to in the

industry.

5.

Hence, it is pleaded that via the present application the

defendants/applicants wish to place on record various documents exhibiting

prior publications in reference to impugned design Nos.262661 & 252225.

It is further stated that recently the counsel for defendants stumbled upon the

judgment of this Court in M/s Crocs Inc. USA vs. Bata India Ltd & Ors.,

(2019) 78 PTC 1, where he came across the existence of "WayBack

Machine", which is an internet archive i.e. a non-profit library of millions of

free books, movies, software, etc. This website provides screen shots of

web pages which could be searched for on the web archive. The search was

started for prior publication of water purifiers with ‘novel’ features, as has

been claimed by the plaintiffs in respect of two registered design

Nos.262661 & 252225 and the defendant came across various web pages

advertising water purifiers, prior to the date of registration of plaintiff's

designs. It is pleaded that it has become imperative to place these documents

on record which have now been discovered on the web to strengthen its

objection of prior publication already stated in the written statement. It is

pleaded that these documents are necessary to show that the ‘novel’ features

claimed by the plaintiffs existed in public domain and the same were

available to the public prior to the date of registration of the plaintiffs’ said

2021:DHC:903

CS(COMM) 84/2019 Page 3 of 10

designs. Hence, the present application.

6.

In the reply, the plaintiffs have stated that the plea taken by the

defendant that he was unaware of the website “WayBack Machine” is not a

ground in law to sustain the present application. The said website has been

in existence since 1995. It is urged that after filing of the written statement

in October, 2018, the learned counsel for the defendants has changed and it

is clear that the filing of the additional documents is nothing but an

afterthought and a device of indirect improvement of the written statement,