TOBU ENTERPRISES PRIVATE LIMITED Vs. JOGINDER METAL WORKS

JUDGEMENT

(1.) By this order I will decide issues NOS.I, IA, Sand 3 which have been treated as preliminary issues.

(2.) The suit for permanent injunction restraining infringement of two registered designs, passing off and for rendition of accounts. The plaintiff is the manufacturer of "mini bike tricycle". It got the design registered in respect of this mini bike under the provisions of the Designs Act, 1911 (for short 'the Act') under registration No. 144635. The seat of the mini bike was also got registered under the said Act Under registration No. 144636. The plaintiff has alleged that defendant No. I is also engaged in the manufacture of tricycles and defendant No. 2 is engaged in marketing of the tricycles manufactured by defendant No. 1. It was in the month of March 1982 that the plaintiff came to know that defendant No. I, without the consent, permission or licence of the plaintiff, had introduced into the market mini bike tricycle with an identical and/or substantially identical design. The plaintiff alleged that the defendants deliberately 'infringed and contravened the copyright of the plaintiff in its registered designs". Then, there are, allegations in the plaint that the defendants have pirated the design of the plaintiff with a view to take advantage of the popularity of the design of the plaintiff in the market -and have made use of the goodwill and reputation of the plaintiff and that the defendants are passing off their inferior quality tricycles bearing the design of .the tricycles of the plaintiff. The plaintiff then alleged that on account of the illegal activities of the defendants, the 'defendants, earned undue profits to which they Were riot entitled and therefore they were liable to render accounts and pay to the plaintiff the profits earned by them on the sals of the tricycles bearing the impugned design of the plaintiff. It was estimated by the plaintiff that on rendition of accounts, the plaintiff would be found entitled to more than a lac of rupees. The plaintiff valued the suit for purposes of court-fee and jurisdiction as follows : "17

(3.) The plaintiff, therefore, prayed for a decree for perpetual inJunction restraing the defendants from manufacturing, selling andJor offering for sale tricycles bearing the in impugned designed and further similarly restraining them from passing off or enabling others to pass off their goods as goods of the plaintiff. The plaintiff furtther prayed for rendition of acounts of the profits made by the defendants and decree for the amounts so found. The plaintiff also prayed for an order of delivery up of all the impugned goods, blocks, dies, etc. for the purpose of destruction.