WESTERN ENGINEERING COMPANY Vs. AMERICA LOCK COMPANY

JUDGEMENT

(1.) The America Lock Company is a partnership firm which carries on business as a manufacturer of locks of various types. Among other products, it manufactures cycle frame locks of horse-shoe shape for locking bicycles. Similarly, Western Engineering Company, is another partnership firm carrying on business as a manufacturer of locks, which also manufactures bicycle locks. The latter firm, i.e.. Western Engineering Company applied for the registration of a design of horse-shoe shape cycle lock used for locking bicycles, under the Indian Patents and Designs Act, 1911. This design was registered and allotted the number 125728 on 25th May, 1965. The former firm, i.e., America Lock Company also applied under the Indian Patents and Designs Act, 1911, for the registration of 'he design of a somewhat similar horse-shoe cycle lock for locking bicycles. Its design was also registered on 25th March, 1967, the application having been made on 29th October, 1966. The number allotted to this registered design was 129675. Thus, it came about that both the America Lock Company as well as the Western Engineering Company obtained registrations of their respective designs for horse-shoe shaped cycle lock.

(2.) On 22nd November, 1966, the America Lock Company instituted a petition under Section 51-A of the Indian Patents and Designs Act, 1911, for the cancellation of the design registered in favour of the Western Engineering Company. That petition was C. O. No. 1 of 1966, in this Court; it was subsequently amended on 28th July, 1967. According to the petition, the registration of the design of M/s. Western Engineering Company was liable to be cancelled because of prior publication and also because the design in question was neither new nor original. The petition has been contested by the respondents, M/s. Western Engineering Company, on various grounds. It is pleaded that design No. 125728 in question, is new and original and had not previously been published in India, and was rightly registered under the Act; the respondent is claimed to be the owner and inventor of a new and original design as on the date of the application for registration. A rejoinder was filed by the petitioner which stated inter alia that there were previously in existence, horse-shoe shaped cycle locks bearing trade marks Chivalry and Wings even prior to 25th May, 1965, whose design had been exactly copied and got registered by M/s. Western Engineering Company.

(3.) On 2nd June, 1967, M/s. Western Engineering Company instituted a suit on the original side of this Court, for an Injunction and damages by rendition of accounts, against M/s. America Lock Company and two of its partners, under Section 53 of the Indian Patents and Designs Act, 1911. That suit was numbered as Original Suit No. 3 of 1967, on the Original Side of this Court. According to the allegations in the plaint, the plaintiff was the owner of registered design No. 125728, the particular feature of which was that it had a protruding portion in front for the lock cylinder into which the key was inserted. Before this lock was introduced, it was said locks had the kev-hole in the side without any raised portion. The registration of this new design lor a cycle lock was issued on 20th January, 1966 against an application dated 25th May, 1965. The plaintiff claimed a copyright for the design registered, which prevented any other person from copying the same, or making a fraudulent or obvious imitation of the cycle lock covered by the registered design. The plaintiff was manufacturing locks, called the 'King Cycle Locks' in accordance with its registered design, which were being sold throughout India. A warning notice concerning this design had been published in various journals and newspapers specified in the plaint. It was claimed that the defendants had started manufacturing cycle locks which were approximately, of the same design as the plaintiffs registered design, without any written or other consent of the plaintiff and had thus committed piracy of the design, which was actionable. Thus, the plaintiff claimed that the defendants had copied or utilised the plaintiff's registered design No. 125728, dated 25th May, 1965. For restraining this, the plaintiff claimed an injunction as well as damages by taking accounts. It was claimed that at least Rs. 1.50 per cycle lock manufactured by the defendants was due to the plaintiff on account of damages, but as it was not possible to measure the damages, it was necessary to take accounts. The plaintiff thus claimed both damages and an injunction. An order was also prayed for against the defendants to deliver up the locks manufactured by the defendants, as well as the implements of manufacture, for destruction.