GOPAL GLASS WORKS LTD Vs. IAG COMPANY LTD

JUDGEMENT

(1.) By way of this application, the applicant - Original plaintiff has prayed for an appropriate interim injunction restraining the opponent/ defendants through their directors, officers, servants, agents, dealers, distributors or through any other persons on their behalf from producing, selling, exposing for sell, offering for sale the glass sheets by applying the Registered Design No. 190336 of the applicant/plaintiff or any fraudulent or obvious imitation thereof and thereby infringing the copyright of the plaintiff and also from passing off their such glass sheets as and for the true goods of the applicant/plaintiff.

(2.) It is the contention on behalf of the applicant that the applicant had obtained the certificate of registration of glass sheets in the name of "DIAMOND SQUARE" under the registration No. 190336 w.e.f. 5.11.2002. That the copyright of the said registered design No. 190336 is conferred upon the applicant for a period of 10 years and may be extended for the further period of 5 years. That the said registration is valid and subsisting under the law and, therefore, as provided under Section 22 of the Act, during the existence of copyright in the said registered design, it shall not be lawful for any person to apply or caused to be applied the said registered design or any fraudulent or obvious imitation thereof to glass sheets for the purpose of manufacture and sale without the license or written consent of the applicant. It appears that after the aforesaid design was registered in favour of the applicant, the defendant No. 2 applied for design named "KOHINOOR" alleged to be similar and as the actions of the defendants were in breach of the provisions of The Designs Act, 2000 (hereinafter referred to as "the Act") and were infringing the rights of the applicant, the applicant - original plaintiff filed Civil Suit No. 1 of 2004 in the District Court, Mehsana. On an application at Exh. 5 moved by the plaintiff, an order granting ex-parte injunction in favour of the plaintiff came to be passed by the learned trial Court. As it was submitted that the defendants have submitted an application for cancellation of the registration under the Act, an application was submitted by the plaintiff seeking transfer of the suit from the District Court to this High Court in light of the provisions of Section 22 of the Act and, therefore. The said suit was transferred to this Court. An application below Exh. 5 was decided by the learned Single Judge of this Court and this Court (Coram: Hon'ble Mr. Justice D.A.Mehta, J.) vide order dated 25.3.2004 vacated the ad-interim injunction, however, issued certain directions. Being aggrieved and dissatisfied with the order passed by the learned Single Judge in vacating the ad-interim injunction, the applicant-original plaintiff preferred OJ Appeal No. 25 of 2004 along with Civil Application No. 54 of 2004 and the following order came to be passed while disposing of the aforesaid OJ Appeal.

(3.) It appears from the record that thereafter the application submitted by the defendant No. 2 came to be decided by the Assistant Controller of Patents and Designs who by its order dated 28.9.2004 was pleased to pass an order to cancel the registered design No. 190336 dated 5.11.2002 which was in favour of the applicant - original plaintiff. It is the case of the applicant that being aggrieved and dissatisfied with the order passed by the Assistant Controller, Patents and Designs, dated 28.9.2004 in cancelling the registered design No. 190336, the applicant approached the Calcutta High Court by way of AID No. 1 of 2005 and the Calcutta High Court vide its judgment and order dated 17.8.2005 has been pleased to allow the said appeal/AID No. 1 of 2005 and has been pleased to quash and set aside the order passed by the Assistant Controller, Patents and Designs, dated 20.9.2004 and has been pleased to restore the registered design No. 190336 (Annexure - D).