DOMESTIC APPLIANCES Vs. GLOBE SUPER PARTS

JUDGEMENT

(1.) MESSRS. Globe Super Parts, Faridabad, respondents in this application, manufacture Gas Tandoors. On February 21, 1977, they got registered a design No. 145258 in respect of their Gas Tandoor. Petitioners MESSRS Domestic Appliances, New Delhi, also manufacture Gas Tandoors under the trade mark 'Sizzler'. They are selling the same in Delhi market. Respondents filed a suit No. 506 of 1977 against the petitioners alleging, inter alia, infringement of their registered design and obtained a temporary injunction restraining the petitioners from selling their Sizzler Gas Tandoors. Feeling aggrieved the claiming themselves as interested in getting the said design No. 145258, cancelled, the petitioners have filed this application under section 51A of the Designs Act, 1911 for an order directing cancellation of the said design No. 145258 and for intimating the controller of Designs, Calcutta, accordingly. The cancellation is sought on the allegations that design No. 145258 was pre-published in India on the date of registration inasmuch as the respondents themselves were manufacturing and selling these Gas Tandoors earlier to the date of application for registration of design No. 145258 and had sold the same to various parties in Delhi, Punjab, Haryana, Jammu and Kashmir and Uttar Pradesh had also advertised the said Supercook Gas Tandoor in several newspapers, including the Hindustan Times dates January 2, 1977 & January 19, 1977. It was also averred that the respondents were not the originators or the owners of the design and that a number of manufacturers were manufacturing Gas Tandoors with this design openly and extensively and the design was neither new nor original on the date of application.

(2.) THE application was resisted by the respondents. It was pleaded that there was no prior publication, lack of novelty, originality or advertisement of the design in question. THE design, it was averred, was new and original design and the present petition had been filed as a counter-blast to the respondents suit No. 506 of 1977. It was also pleaded that the petitioners were not interested in the cancellation of the design.