SMITHKLINE NEECHAM PLC Vs. HINDUSTAN LEVER LIMITED

JUDGEMENT

(1.) The plaintiffs instituted a suit in this court praying for a decree of declaration that the plaintiffs are exclusive owners and proprietors of the tooth brush designs `ACQUA FLEX' and `ACQUAFRESH FLEX N' DIRECT' having foreign registrations. In the suit a decree for permanent injunction was also sought for preventing infringement of the tooth brush design registration of the plaintiffs by restraining defendants, their partners, servants and agents from manufacturing, selling or offering for sale tooth brushes bearing same designs which are identical with or deceptively similar to the tooth brush of the plaintiffs and also from restraining the defendants 1 & 2 jointly and severally from passing off their business and goods as those of the plaintiffs and also for payment of damages for a sum of Rs.5,05,000.00 . Alongwith the aforesaid suit an application for temporary injunction was also filed seeking for an injunction restraining the defendants from making infringement to the said tooth brush design and from manufacturing, selling or offering for sale tooth brushes having designs which are identical with or deceptively similar to that of the plaintiffs.

(2.) It is the case of the plaintiffs that the plaintiff No.1 through its own efforts and through the efforts of its subsidiary companies developed the design of a tooth brush consisting of a distinctive aesthetic handle and head shape, a connecting portion with S-shaped (zig-zag) folds between the Head (carrying the `bristles') and the Handle for which the plaintiffs obtained foreign registrations. It was further stated that the plaintiffs No.1 & 2 had entered into an Intellectual Property Right Agreement dated 3.6.1996 whereunder the plaintiff No.1 appointed the plaintiff No. 2 as its distributor to sell and distribute throughout India including the Territory of Delhi tooth brushes manufactured as per the foreign and/or Indian registered design of plaintiffs No.1 and/or 3.

(3.) It is alleged that the traders including defendant No.1 who happened to go abroad, came across the acquafresh tooth brush of the plaintiffs or otherwise acquired knowledge about its distinctive design, and after making applications in India for registration of the said tooth brush design of the plaintiffs in their own name and the said applications for registration of design filed by defendant No.2 were accepted and were granted registration without making proper investigation and search of Designs Register for existing registered designs and publications. In the light of the aforesaid statements the plaintiffs sought for a decree for declaration and for permanent injunction as delineated above and also sought for a temporary injunction.