SAGOLITE INDUSTRIES Vs. N P INDUSTRIES

JUDGEMENT

(1.) MESSRS Sagolite Industries and MESSRS Metal India Industries-the Petitioners herein-have filed this Petition under Section 51A of the Designs Act, 1911, against MESSRS N.P. Industries, a partnership firm-the Respondents herein for the relief of rectification of designs for head of torch as shown in Exhibit B to the Petition and bearing No. 135287 and for switches for torches as shown in Exhibit C to the Petition and bearing No. 135288 by cancellation thereof and the entries therein being ordered to be removed from the Register of Designs.

(2.) IT is the case of the Petitioners that the 1st Petitioners are manufacturing only the plastic body and front frame and the plastic parts of switches for torches for and on behalf of the 2nd Petitioners. The 2nd Petitioners have been manufacturing and selling torches under the trade mark "DULUX' since the year 1966. The Petitioners aver that in the year 1967 the Petitioners were given imported torches of "BEREC" and "EVER READY" makes by their friend, and they decided to manufacture similar torches, which job they thereupon took up of manufacturing the mould in respect of the said torches in the year 1968. However, because of the difficult nature of the job involved in the manufacture of the moulds of such torches it took the 1st Petitioners three years to complete the said moulds and dies and ultimately the final product was introduced in the market by the Petitioners in the year 1972. The Petitioners further state that such moulds were put for sale in the market by the 2nd Petitioners, under the trade mark "DELUX" Jumbolite". IT is further their case that the said torches with the said design as those manufactured and sold by the Petitioners were available in the Indian market and when the Petitioners adopted the said designs from the foreign imported torches bearing marks "BEREC" and "EVER READY" the said designs were not new and original designs within the meaning of the Indian Patents and Designs Act, 1911. The Petitioners say that the Respondents were also aware and had knowledge of the said designs of torches. The Petitioners then proceeded to aver that the Respondents got certain designs for head of torches and for switches for torches registered under Nos. 135287 and 135288 respectively on 11th February, 1969 under the Indian Patents and Designs Act, 1911, on the ground that the novelty resides in the head of the torch and in the switch of the torch as illustrated in Exhibits B and C to the Petition. The Petitioners say that the 1st Petitioners received a notice dated 27th April 1971 from the Respondents' Patent and Trade Mark Attorneys informing the 1st Petitioners that the Respondents were the registered proprietors of the said designs bearing Nos. 135287 and 135288 and that they had recently came to know that the 1st Petitioners had introduced in the market a torch having a head and switch identical with the designs of the Respondents. By the said notice the Respondents called upon the 1st Petitioners to withdraw the torches manufactured and marketed by the 1st Petitioners and to hand over the same to the Respondents. The 1st Petitioners by their Trade Marks Attorneys' letter dated 4th May, 1973 denied the said facts and intimated that they had never come across any such torches bearing the said designs being sold or marketed by Respondents. They further inquired of the Respondents whether they had so far manufactured or marketed any torches bearing the said designs. In their reply the 1st Petitioners informed the Respondents that a similar design of torch as that of the Respondents was also registered under No. 136861 under Clause 3 in the name of Geep Flashlight Industries Ltd.

(3.) THE Respondents have been served with a notice of the said Petition. An affidavit dated 11th February, 1974 of Shri D. M. Kadam has been filed as to the service of the said Notice of the Petition upon the Respondents. THE Respondents have not appeared in this Court either through any Advocate or Attorneys and are also absent before me today.