CARLSBERG BREWERIES Vs. SOM DISTILLERIES AND BREWERIES LTD

JUDGEMENT

(1.) The reference to this larger, Special Bench of five judges, was occasioned by the detailed speaking order of a learned Single Judge, in the present suit, which sought the reliefs of infringement of design and a decree for injunction against passing off. The learned Single Judge, by the order dated 02.05.2017, referred the question as on the whether the decision in Mohan Lal v. Sona Paint, 2013 55 PTC 61 (Del) (FB) - hereafter "Mohan Lal" on the aspect of maintainability of a composite suit in relation to infringement of a registered design and for passing off, where the parties to the proceedings are the same needs re-consideration by a larger bench in the light of Order II Rule 3 CPC, which permits joinder of causes of action. The decision in Mohan Lal (supra) was by a Full Bench of three judges. During the pendency of this reference the dispute inter parties was rendered moot due to a mutually acceptable settlement; nevertheless this court was requested to hear and decide the issue, on account of the importance of the subject matter.

(2.) We had the benefit of the draft judgment by Valmiki. J. Mehta, J. We agree with his conclusions as well as his analysis and reasoning. However, we are of opinion that it is also necessary to state additional reasons while recording the same conclusions.

(3.) The facts are not elaborately discussed; the present suit (out of which this reference arose) was filed, complaining of infringement of a registered design as well as passing off (of the plaintiff's trade dress) in respect of the bottle and overall get up of the "Carslberg" mark. The defendant objected to the frame of the suit, pointing out that per Mohan Lal (supra), the two claims (for passing off and reliefs regarding design infringement) could not be combined in one suit. The single judge analysed parties' submissions and felt that the issue decided in Mohan Lal (supra) required a second look; he therefore, referred the matter for appropriate orders to the Chief Justice. This Special Bench was constituted, resultantly.