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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment delivered on: 05.08.2022

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RFA(OS)(COMM) 4/2021 and CM Nos. 21961/2021, 21962/

2021 & 21963/2021

KAMDHENU LIMITED

.....Appellant

Versus

AASHIANA ROLLING MILLS LTD

..... Respondent

Advocates who appeared in this case:

For the Appellant

: Mr. Sudarshan Kumar Bansal, Mr. Kumar

Shashwat & Mr. Nikhil Sonkar, Advs.

For the Respondent

: Mr. Kapil Wadhwa, Ms. Surya Rajappan

and Ms. Tejasvini Puri, Advs.

CORAM:

HON'BLE MR. JUSTICE VIBHU BAKHRU

HON'BLE MR. JUSTICE AMIT MAHAJAN

JUDGMENT

VIBHU BAKHRU, J

INTRODUCTION

1.

The appellant (hereafter ‘Kamdhenu’) has filed the present

intra-court appeal impugning the judgement dated 12.05.2021

(hereafter ‘the impugned judgement’), whereby the learned Single

Judge allowed the application filed by the respondent (hereafter

‘Aashiana’) under Order XIII-A of the Code of Civil Procedure, 1908

(hereafter ‘the CPC’) and dismissed the suit filed by Kamdhenu,

being CS (COMM) 90/2018. The appellant had filed the said suit

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/002968

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alleging infringement of its registered design regarding the surface

pattern on steel rods.

2.

The learned Single Judge found that the design in question was

a prior published design and held that the registration of the said

design was contrary to Section 4 of the Designs Act, 2000 (hereafter

‘the Act’). Kamdhenu contends that the said finding is erroneous as

the prior published design in question (British Standard B500C) is an

industry standard and several surface designs are conceivable

conforming to the said standard.

FACTUAL CONTEXT

3.

Kamdhenu is engaged in the business of manufacturing and

marketing steel bars and other allied goods under the name and

trademark ‘KAMDHENU’. Kamdhenu claims that it created and

developed a unique design, having new and original features of

surface pattern, comprising of double ribs applied to steel bars, in the

year 2012-2013.

4.

Thereafter, on 14.01.2013, Kamdhenu obtained a Design

Registration bearing no. 250968 under Class 25-01 (hereafter ‘the

said design’), in respect of ‘Rod for Construction’. The Controller

General of Patents, Designs and Trade Marks has issued a certificate

dated 29.08.2014 evidencing registration of the said design in favour

of Kamdhenu.

5.

Kamdhenu states that the said design was applied to its ‘best

quality steel bars’ under the name of ‘KAMDHENU SS 10000 TMT’;

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/002968

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a product which was launched on 18.06.2013. It achieved considerable

commercial success and the monthly sales have been increasing since.

The monthly sales of the product in question amounted to

approximately ₹60 crores in the year 2013-2014; over ₹100 crores in

the years 2014-2015 and 2015-2016; and, approximately ₹83 crores in

the year 2016-2017.

6.

Kamdhenu claims that in the month of June 2017, it discovered

that Aashiana was selling steel bars with similar surface design under

the name ‘FRIENDS 500 HD TMT BARS’ in several markets across

South Delhi. Kamdhenu alleges that Aashiana applied/copied/adopted/

imitated a surface design, which is similar to the said design.

7.

On 12.06.2017, Kamdhenu filed a suit before the learned

District Court, Saket, inter alia, seeking a permanent injunction to

restrain Aashiana from using the said design. By an order dated

15.06.2017, the learned District Court, Saket granted an ex parte order

of injunction and appointed a Local Commissioner to inspect the

premises of Aashiana and seize the infringing goods and packing

material. The said suit was subsequently transferred to this Court. This

Court, by an order dated 03.11.2017, confirmed the interim protection

granted to Kamdhenu by the order dated 15.06.2017.

8.