KEMP AND CO Vs. PRIMA PLASTICS LIMITED

JUDGEMENT

(1.) THIS is a matter of "chair", not for power, but for infringement of registered design and passing off. In the action initiated by the plaintiffs relief is sought against the act of infringement of the 1st plaintiffs registered design of Baby chair with human face and for passing off committed by defendants by adopting similar identical design, shape, and configuration and get up in respect of Baby chair manufactured and sold by the defendants.

(2.) THE case set up by the plaintiffs is :--

(3.) IN the motion taken out by the plaintiffs, prayer for appointment of Court Receiver and temporary injunction is made during the pendency of the suit. It is prayed that the defendants be restrained from applying the registered design No. 169723 in any manner whatsoever to the chairs or any other design which is fraudulent or obvious or colourable imitation thereof and from manufacturing and/or offering for sale the chairs of such design. The plaintiffs have also prayed that the defendants be restrained from using in any manner the Baby chairs of the shape, colour scheme and get up as appearing in Exh. F to the plaint or any other shape, get up, and colour scheme so as to pass of or enable others to pass off the defendants goods as and for the goods of the plaintiffs. In substance the plaintiffs are asking for temporary injunction restraining the defendants from infringing the 1st plaintiffs Registered Design No. 169723 and from manufacturing or selling their chairs by using the shape, colour scheme and get up of the plaintiffs to pass off the said goods as the goods of the plaintiffs. The plaintiffs have also prayed for appointment of Court Receiver for all such chairs in possession and control of the defendants and the documents relating thereto with all powers under Order 40, Rule 1 of the C. P. C. In support of the Notice of Motion an affidavit of Shri Ajit Namajirao Desai, who is the Deputy General Manager (Tech.) of the 1st plaintiff, has been filed. He has re-stated the facts in his affidavit which have been averred in the plaint. The defendants are contesting the Notice of Motion taken out by the plaintiffs. The 1st affidavit-in-reply was filed by the defendants on 5-8-1996 and further affidavit has been filed on 30-8-1996. The opposition to the Notice of Motion the defence by the defendants as culled out from the affidavit-in-reply is based on the grounds: the plaintiffs claim that the design of Baby chair with human face on the backrest has been originally conceived by them in or about 1994 is false to their own knowledge. The said design had already been published in India by one Production S. A. The catalogue published in India by one production S. A. depicting plastic chairs consisting of human face on the backrest was published in India since February 1995. Even prior to the application for registration made by the 1st plaintiff on 22-8-1995, the Baby chairs bearing the said design was openly sold in India by the plaintiffs prior to its registration. In support of prior publication, the defendants in their affidavit-in-reply sought to rely on catalogue of Production S. A. and two invoices bearing No. 144 and 172 both dated 31-5-1995. The defendants have already made an application for cancellation of the registered design bearing No. 169723 of the 1st plaintiff under section 51-A of the Design Act, 1911 before the Controller of Patent and Design on the ground that the design had been published in India prior to the date of registration. The defendants in their defence also set up a case that the registration of the design in favour of the 1st plaintiff is of recent date and the validity of registration being seriously disputed on various grounds including on the ground of prior publication, lack of originality and such other grounds, the registration of design in favour of the plaintiff is not prima facie evidence of its validity. Alternatively the defendants set out the case that the impugned design of defendants baby chair is substantially different from the plaintiffs registered design. It is stated that as per the first plaintiffs the registered design of Baby chair, statement of novelty is confined to backrest portion and the seat. According to the defendants while the backrest of the plaintiffs chair does not have any holes, the defendants chairs have permanent holes. The seat of the defendants chair is completely different from the seat appearing in the registered design of the 1st plaintiff. The plaintiffs chairs are sold under the trade mark "moderna Champ", whereas the defendants chairs are sold under a totally different trade mark " Prima". The defendants thus submitted that the plaintiffs are not entitled to the grant of interim reliefs as prayed.