RECKITT BENCKISER INDIA LTD Vs. WYETH LIMITED

JUDGEMENT

(1.) The present appeal has been filed against the impugned order dated 7.8.2009 of the learned Single Judge disposing of two applications filed in the suit, one by the plaintiff/appellant for grant of injunction and the second of the defendant/respondent for vacation of the interim injunction. By the impugned order, the learned Single Judge had dismissed the injunction application of the plaintiff/appellant and allowed the application for vacation of injunction of the defendant/respondent and the interim order dated 8.1.2007 passed in favour of the appellant/plaintiff was vacated.

(2.) The issue in the present appal is with regard to the claim of entitlement of the appellant of alleged infringement by the respondent of the appellant's registered design No.193988 dated 5.12.2003 in Class 99-00 with respect to an S-shaped spatula. The S-shaped spatula is designed for the application of a cream for hair removal i.e. a cosmetic depilatory. The defence of the respondent is that the registered design of the appellant is not new/original and the same was also registered and published abroad prior to the registration in India. It is also further averred that the S-shaped spatula design was in fact in used abroad pursuant to its registration. The respondent, in fact, alleged suppression of facts on behalf of the appellant in not disclosing the prior registrations of the design in various countries and thereafter of the manufacturing and publication of the subject design abroad.

(3.) The learned Single Judge framed the following questions for determination: