TILAK RAJ Vs. CLEAN DEAL INDUSTRIES

JUDGEMENT

(1.) The suit of the plaintiff appellant the against defendant respondent complaining that the latter had sold spoons which were an obvious imitation of the spoons manufactured by the plaintiff appellant, the design of which had been registered under section 47 of the Patents and Designs Act, 1911, contrary to section 53 thereof and praying for an injunction against the defendant respondent was dismissed by the trial court. Hence this appeal

(2.) The plaintiff had got registered his design on the spoons after making an application under section 43 and the registration certificate was issued to him by the Controller of Patents and Designs on 7tb February 1962. The plaintiff appellant thereupon obtained a copyright in the said design under section 47 of the Act. Section 53 makes it unlawful for any one to imitate such a registered design and sell a product bearing such design being an obvious imitation of the registered design without the consent of the registered proprietor of the design. The trial court found that the plaintiff was a registered proprietor of the design No. 111025 and also that the spoons sold by the defendant were so similar to those sold by the plaintiff in design that it was difficult to distinguish the one from the other. On this finding, the action of the defendant amounted to "an obvious imitation" of the design of the plaintiff appellant within the meaning of section 53 of the Act. The trial court, however, dismissed the suit for injunction on the ground that the designs of both the plaintiff and defendant were an imitation of a German design called SIIKEMA and, therefore, the plaintiff's design was not entitled to registration. For, under section 43 only such a design was entitled to registration as was new or original and not previously published in India.

(3.) The learned trial Court did not refer to sections 47, 51 A and 53 of the Act. He relied on the decision in Qader Bakshsh v. Gulam Mohammad1 for the proposition that the registration of the plaintiff's design was not effective unless the design was proved by the plaintiff in the suit to have been one which had been not previously published in India.