BAJAJ ELECTRICALS LTD Vs. SIRI RAM AND SONS

JUDGEMENT

(1.) THE plaintiffs have filed this suit for an order of perpetual injunction restraining the defendants from in any manner applying without the plaintiffs, licence and/or permission the registered design under No.163381 or any other design which is a fraudulent or obvious or colourable imitation thereof to the ceiling fan and from manufacturing and/or offering for sale the infringing design, a specimen of which is shown in Ex. F to the plaint, or any other fan which is a fraudulent or obvious or colourable imitation of the plaintiff's registered Design No.163381 being Ex. A to the plaint and the plaintiffs' fan being Ex. B to the plaint so as to infringe the plaintiffs' registered Design No.163381. THE plaintiffs have also prayed for a decree in the sum of Rs. 1,00,000/- for infringement of design No.163381. THE Notice of Motion has been taken out with a prayer that pending the hearing and final disposal of the suit, the defendants be restrained by an order of injunction in the aforesaid terms.

(2.) IT is the pleaded case of the plaintiffs that they are manufacturing various consumer items from electric lamps to kitchenware. They are also dealer in wide range of domestic appliances including ceiling fans, table fans, wall mounting fans etc. The defendants No.1 and 2 are manufacturers and suppliers of fans. The defendant No.3 are the dealers of ceiling fans manufactured and marketed by the defendants No.1 and 2 . The suit is filed complaining against the acts of infringement of registered design and passing off allegedly committed by the defendants by adopting identical shape, configuration, design, ornamentation and get up of the ceiling fan, the photographs of which are Ex. F to the plaint. The plaintiffs applied for and obtained registration of an original and distinctive novel design relating to the shape, configuration and ornamentation of the ceiling fan under the Designs Act, 1911 under No.163381 dated 5th July, 1991 in Class 1 of the IV Schedule attached to the said Act. After the registration, the plaintiffs commenced marketing of the said fan in July, 1991. The annual sales of the plaintiffs with regard to the aforesaid fan as contained in Ex. C to the plaint, from July 1991 to March 1992 were Rs. 1,09,16,581/ -. These sales figures had grown to Rs. 8,39,26,074/- by the end of March, 1995. Ex. D shows promotional expenses incurred by the plaintiffs in respect of the ceiling fan registered under No.163381. In or about the last week of February, 1995, the plaintiffs came across a brochure containing a ceiling fan which bears the design, shape, configuration and ornamentation of the plaintiffs ceiling fan being Ex. B to the plaint. The ceiling fan mentioned in the brochure is annexed as Ex. F to the plaint. On 24th February, 1995, the plaintiffs sent a notice to immediately cease and desist from applying the impugned design on the ceiling fan. The defendant No.3 by its letter dated 18th March, 1995 stated that the defendants No.1 and 2 are the manufacturers and suppliers of the ceiling fan. The plaintiffs were, therefore, requested to take up the matter with the defendants No.1 and 2.The plaintiffs, therefore, wrote to the defendants, No.1 and 2 on 24th March, 1995 pointing out that the defendants are infringing the design of the plaintiffs. On 11th April, 1995, the defendants No.1 and 2 replied to the aforesaid notice through their advocate. IT was stated that the defendants are manufacturing and marketing ceiling fans under the name 'saturn' openly and extensively. IT was also stated that the shape and configuration of ceiling fan of the plaintiffs are quite different from that of the fans of the defendants. The plaintiffs were also informed that Mr. Harish Chhabra as M/s. Siri Ram & Sons is the registered proprietor of design of the ceiling fans at No.167584 since 2nd June, 1994. In view of the above, it was stated that the defendants have not infringed any of the design of the plaintiffs. Consequently, the plaintiffs are constrained to file the suit and the present Notice of Motion has been taken out.

(3.) THE counsel for the defendants has relied upon a judgment of this Court given in the Notice of Motion No.2252 of 1994 in Suit No.3311 of 1994. In that case, the relief has been refused on the ground that the Court will not grant an interlocutory injunction unless satisfied that there is a real probability of the plaintiffs succeeding on the trial of the suit. It has also been denied on the ground that an interlocutory injunction will not normally be granted where damages will provide an adequate remedy should the claim succeed. In that case also Justice Sakhare had come to the conclusion that there is serious dispute as to the validity of the designs and the similarity of the designs. Thus, it was held that no injunction should be granted. THE counsel for the defendants has also relied on a judgment of the Delhi High Court reported in 1983 PTC 359 (Tobu Enterprises Pvt. Ltd. Vs. Megha enterprises and another), wherein it is held that when the designs of both the parties are registered, no action in the nature of issue of injunction or recovery of damages is permissible. It is held that remedy in such a case is as provided in Section 51-A of the Act.