METRO PLASTIC INDUSTRIES REGD Vs. GALAXY FOOTWEAR

JUDGEMENT

(1.) the plaintiff, a registered partnership firm, through its registered partner Sh.Surinder Singh Gandhi has "filed Suit No.3032/96. The plaintiff firm seeks following reliefs: '

(2.) IA No.12385/96 has been filed seeking ad interim injunction under Order 39 Rules 1 and 2 Civil Procedure Code restraining the defendants from-manufacturing, marketing, selling, advertising or offering for sale of the patterned/designed footwear and design identical to the plaintiff's said design No. 169611 in Class-10.

(3.) The defendants are contesting the present suit as well as the application for grant of ad interim injunction inter alia on the ground that the impugned design lacks originality, for it was prior published design. The sister concern of the plaintiff itself has sold the said footwear bearing the impugned design "Scandal" on 5th July, 1995 vide invoice No.3510 in favour.of M/s. National Footwear, Calicut. As such, the plaintiff not being the originator of the impugned design cannot claim the protection sought. The impugned registration does not have any distinctive shape, design, configuration or pattern which was not known prior to the date of prior publication. It has not generated any goodwill or reputation in the eyes of the public for neither any sale figure nor any advertisement expenses in respect of manufacture and sale of the said product bearing the impugned design has been claimed in the plaint. The plaintiff has no exclusive right to manufacture and sell the product having the impugned design. The plaintiff is definitely not proprietor of the said impugned registered design. The defendants have already challenged the same in a separate proceedings and as such, no right accrues to the plaintiff on the basis of the registration in respect of the said impugned registered design, the design being 6,nly of recent origin apart from being pre-known and prior published design.