WIN PLAST LTD. Vs. SYMPHONY LTD.

JUDGEMENT

(1.) The present O.J. Appeal is directed against the impugned judgment and oder passed in Civil Suit No. 2 of 2015 by this High Court (Coram: S.R. Brahmbhatt, J.) dated 5.5.2015 in a matter under the Designs Act, 2000 regarding the infringement, etc. on the grounds stated in the Memo of the Appeal.

(2.) It is contended, inter alia, that the interim relief restraining the appellant and respondent Nos. 2 & 3 original defendants from marketing, selling, advertising directly and/or indirectly dealing in air cooler on the ground that it is similar to the registered design of the respondent is contrary to law as well as the material on record. It is contended that the learned Single Judge has failed to appreciate that the High Court of Gujarat had no jurisdiction to try and entertain the suit under sec. 22 of the Designs Act, 2000 read with sec. 20 of the Civil procedure Code, 1908 as it is a composite suit. It has been contended that the learned single Judge has failed to appreciate that the suit filed on behalf of the plaintiff was on mere apprehension of sale of goods in Ahmedabad which may not be giving rise to the cause of action in Ahmedabad. It has also been specifically contended that the provisions of sec. 62 of the Copyright Act and sec. 134 of the Trade Marks Act could not have been referred to seek any analogy for the purpose of the present suit. It is contended that appellant-original defendants were operating from Mumbai and the territorial jurisdiction therefore lies with the court at Mumbai. It is further contended that the learned Single Judge has failed to appreciate the provisions of the Designs Act, 2000 and has failed to appreciate that the design of the respondent-original plaintiff were not new, unique and are common to the trade and therefore it is hit by the provisions of sec. 4 of the Designs Act. It is contended that presumption can be drawn that the registered design holder had passed the test of sec. 4 for the purpose of registration and therefore the present suit has been filed.

(3.) Heard learned Sr. Counsel Shri RS Sanjanwala appearing with learned advocate Ms. VD Nanavati for th appellant-original defendant No.1 and learned Sr. Counsel Shri Mihir Thakore appearing with learned advocate Jatin Trivedi for the respondent-original plaintiff.