PLASTELLA Vs. CONTROLLER OF PATENTS AND DESIGNS

JUDGEMENT

(1.) THIS is an appeal from an order dated 18th December, 1986 passed by the Joint Controller of Patents and Designs, on an application for cancellation of registration of the Registered Design No. 154062 dated 21st February, 1984 filed by the respondent No. 3 herein under Section 51A of the Designs Act, 1911. By the order under appeal the Joint Controller of Patents and Designs allowed the application of the respondent No. 3 and cancelled the registration of Design No. 154062 dated 31st February, 1984.

(2.) THE facts as would appear from the paper book are shortly as follow:

(3.) THE main contention of the respondent No. 3 before the Joint Controller was that the design had been published in India prior to the date of registration of appellant's design. THE respondent No. 3 submitted before the Joint Controller that when after filing the said application in Design Application No. 153451 on 12th September, 1983 for registration of design of their comb under the Designs Act, 1911, the respondent No. 3 prepared the artistic work of the label/carton containing the design of the said comb and applied for registration thereof on 26th November, 1983 under the Copyright Act and got the same duly registered under No. A-45812/84 dated 30th August, 1984 under the provision of the said copyright Act. THE respondent's application fro registration of its own design which was made on 12th September, 1983 under the Design Act was, however, dismissed and it appears from the record as found by the Joint Controller that not design was registered under the Design application No. 153451 filed by the respondent on 12th September, 1983. THE Joint Controller, therefore found that said application for registration of the respondent's Design under Application No. 153451 could not be taken as a relevant documentary evidence as prior publication and he held that merely because the Design application No. 153451 was made on 12th September, 1983 before the Controller for registration prior to the date of the registration of appellant's Design under Application No. 154062, it cannot be held that the Design was previously published. THE Joint Controller, felt that it was not necessary for him to consider whether the desing of the application No. 153451 was identical or not to the registered Design No. 154062 of the appellant. He, however, found that except certain insignificant variations the two designs of the comb. THE Design of the respondent No. 3 registered under the Copyright Act, being A-45822/84 dated 30th August, 1984, and the Design of appellant registered under the Designs Act being 154062 are identical.