SRMB SRIJAN LIMITED Vs. TRIBENI INDUSTRIES PRIVATE LIMITED

JUDGEMENT

(1.) THIS is an appeal filed from order dated 3rd February, 2010 by which the registered design of the appellant has been cancelled.

(2.) THE case of the appellant is that on an application for cancellation of its registered design filed by the respondent, Affidavit of Evidence was filed both by the appellant and by the respondent. THE design of the appellant was registered on 4th April, 2003. In the application for cancellation, the plea of prior publication was taken by the respondent. In the Affidavit of Evidence filed on behalf of the respondent, the advertisement relied on was of Raipur Alloys and Steel Limited in 2002. This has not been accepted by the Controller as a piece of evidence for prior publication. It is only on the basis of the invoices annexed in its Affidavit of Evidence that the Controller has held that there has been prior publication of the appellants design and, therefore, its registration cancelled.

(3.) IT has also been admitted by the appellant that for the first time, on 4th April, 2003, the idea of X-Rib design was conceived. Reinforcing steel TMT Bar with surface patterns of various design are manufactured by the appellant has also been admitted. The X-Rib surface pattern has become popular by virtue of advertisement in the media is also an admitted position. Reliance has been placed on invoices and two of the invoices relied on are dated 15th March, 2003 and 2nd April, 2003, i.e, prior to 4th April, 2003. Therefore, the said design was prior published and the appellants registration cannot be sustained. The Affidavit of Evidence wherein the said invoices have been furnished has been verified by Mr. M.M. Abraham the Vice-President of the said paragraph the deponent in paragraph 3 and has been affirmed as true to knowledge. As the admission has been accepted in view of non-denial the question of giving an opportunity to explain, does not arise as held in 2005 (1) CHN 346. Reliance has also been placed on IPLR 1995 (20) 119 and 24 PTC 449. User has been claimed by Raipur Alloy in 2002 and, therefore, the case of prior publication exists. AIR 1915 PC 7 and AIR 1953 Nagpur 154 has no application in the facts of the present case and in view of Section 145 of the Evidence Act.