TOBU ENTERPRISES PRIVATE LIMITED Vs. JOGINDER METAL WORKS

JUDGEMENT

(1.) The quesction that thispplication raises is as to entitlements of the plaintiff to restrain the defendants from manufacturing, selling or offering for sale tricycles, said to bear the design claimed to be an infringement of the registered designs of the pla.intiff, during the pendency of the plaintiff's suit for .permanent injunction to restrain infringement of the designs and for passing off, rendition of accounts and certain other reliefs.

(2.) Tobu Enterprises Private Ltd, plaintiff, is the manufacturer and seller of children bicycles, tricycles, cars and strollers and claims that its goods have distinctive shape and configuration and are in great demand. It is claimed that amongst the famous product of the plaintiff is "mini bike tricycle" having a unique, novel and distinctive shape and configuration and the plaintiff is the proprietor of the new and original design in respect of the tricycle which is registered under the Designs Act by virtue of which the plaintiff claims exclusive right to apply the features thereof to the mini bike triycle of its manufacture and that use of the design by any other trader of the said design in relation to the tricycle without the permission, licence or consent of the plaintiff would amount to infringement of the plaintiff's right. The seat of the tricycle is also claimed to be of a novel and unique design, which is separately registered. Plaintiff claims exclusive right in respect of the design of the seat as well in addition to that of the tricycle. The plaintiff claims that by virtue of novelty and originality of the designs, the plaintiff has acquired unique reputation and goodwill in respect, of the said manufacture and that the defendant No. 1 is manufacturing and defendant No. 2 is marketing tricyles, manufactured by defendent No. 1, with an identical or substantially identical design and have thereby deliberately infringed and contravened the copyright of the plaintiff in the designs with a view to take advantage of the popularity of the plaintiff's design, goodwill and reputation. It is claimed that the defendants are thus passing off the inferior quality tricycle bearing impugned design as the tricycle of the plaintiff. On these allegations, the plaintiff seeks permanent injunction to restrain the defendants from pirating the registered designs of the plaintiff, from passing off their goods bearing impugned design as the manufacture of the plaintiff, for delivering up of the impugned products and for rendition of accounts of profits made by the defendans.

(3.) By I.A. 1242182, the plaintiff prays that, during the pendency of the suit, defendants should be restrained from manufacturing, selling or offering for sale tricycles bearing the offending designs.