(1.) In an action for infringement of its registered design, M/s. Bansal Plastic Industries, the plaintiff, has filed this application under Order 39 Rules I and 2 read with Section 151 of the Code of Civil Procedure seeking an order restraining the respondents, their servants, agents, stockists, dealers and all other persons on their behalf from manufacturing and selling the 'Toy Horse' of the design in suit till the final disposal of the suit.
(2.) According to the averments in the plaint, the plaintiff was carrying on business, inter alia, of manufacturing and marketing children's tricycles and toys. One of its propucts was a 'Toy Horse'. The plaintiff prepared its design in August, 1983 It was a distinctive design with unique features and configuration. The design was new and original and had not been previously published. In order to protect its right in that design the plaintiff made an application for registration of the said design under No. 153343 dated 7th August, 1983. The design was registered and a certificate issued on 6th December, 1983 by the Controller of Patents and Designs, Calcutta with effect from 7th August, 1983. The renewal application made by the plaintff was pending. The said registration was valid, subsisting and in force.
(3.) Further case of the plaintiff is that M/s. Shiva Industries, defendant No. 2, was manufacturing the Toy Horse for M/s. Neeraj Toys Industries, defendant No. 1. The design of the 'Toy Horse' of the defendants was identical/similar to the registered design of the 'Toy Horse' of the plaintiff. The defendants had infringed the statutory right of the plaintiff in respects of the said design and were threatening to continue to infringe its exclusion right in respect of the said design. In the application (1.A. 8722 of 1988) it was also alleged that the plaintiff had a good prima facie case, balance of convenience was in its favour and it shall suffer an irreparable loss in case temporary injunction was not granted.