GANDHIMATHI APPLIANCES LIMITED Vs. L G VARADARAJU

JUDGEMENT

(1.) THESE appeals are against the interim order of injunction granted by the learned Single Judge restraining the defendant in the suit, who is the appellant before us, from infringing the patent, design and the copy right of the plaintiffs, who are the respondents before us with respect to a wet grinder. Second plaintiff in the suit obtained patent 179607 dated 9th May, 1991 which was sealed on 3rd April, 1998 in respect of the wet grinder, details of which we shall presently advert to. That plaintiffs also obtained registration of design for wet grinder in registration Nos. 163445 and 163440 dated 25th July, 1991.Second plaintiff also claims a copy right in the instruction manual, which was published by it, for use by the persons buying its wet grinders. The wet grinders are sold under the brand name 'ultra'. The plaintiff claim to be the first manufacturers of such wet grinders which are described as 'table top wet grinders'. Plaintiffs had issued caution notices in the years 1993 and 1995 cautioning the public against anyone else claiming any right to manufacture that product, for which, an application for sealing of a patent was then pending, and also infringing the design for registration of which also, an application was then pending. The plaintiffs had, by the time the suit came to be instituted, manufactured 2, 48, 155 wet grinders, and marketed the same. The quantity sold during the years subsequent to 1996 being in excess of 40, 000 units each year. The value of the 38, 182 wet grinders sold from 1st April, 1999 to 29th February, 2000 is said to be Rs. 16.68 crore of the three plaintiffs, the first is the inventor, the second, assignee manufacturer in whose name patent was obtained, and the third the licensee which markets the product.

(2.) IT is the case of plaintiffs that in the month of March 1999, they came to know about the manufacture by the defendant in the suit, of a wet grinder, which according to the plaintiffs was identical to that manufactured by the plaintiffs, and with a design, which again according to the plaintiffs, was a blatant imitation of their design, and it was also accompanied by an user's manual, which also according to the plaintiffs was a total imitation of the plaintiffs' manual. The plaintiffs thereafter instituted the suit in April 1999. Learned Single Judge, after receiving the affidavits filled by the defendant in answer to the applications filed with the plaintiffs' for injunctions, granted the injunction sought for on 29th February, 2000, and also allowed a period of one month from that date for the defendant to dispose of the units which had been manufactured earlier. According to the defendant, it had manufactured in the period subsequent to 1st April, 1999, 19, 880 units and had sold 17, 604 of those units. The units so sold are said to be of the value of Rs. 7. 75 crore inclusive of the excise duty and sales tax. The gross profit made by it on the units so sold is said to be 1.09 crore and the net profit there from Rs. 30.46 lakh. The certificate issued by its auditor shows that the net profit estimated by the defendant from the sale of the table top wet grinder sold by it under its brand name 'Butterfly' was 5 per cent. The value of the units manufactured by the defendant from 1st April, 1999 to 9th March, 2000 exclusive of excise duty and sales tax was Rs. 5.96 crore.

(3.) IT was also the case of the defendant that the two products are not identical, as the defendant's product has in addition to the two conical rollers found in the plaintiff's products has a third supplemental conical roller and that provides for additional grinding by making the material to be ground pass between the supplemental conical stone and the two other conical stones which are to rest on the base stone. The application filed by the defendant for patent is in fact in respect of the device, along with the rotatable drum with the base stone being the bottom of that drum.