LAKHBIR SINGH Vs. SARDAR TRADING COMPANY AND ORS.

JUDGEMENT

(1.) THIS petition was filed originally by Thakur Dass and his son Lakhbir Singh as partners of Messrs. Fancy Shoulder Pad Makers under Section 51 -A of the Indian Patents and Designs Act, 1911 (hereinafter called the Act), for cancellation of the designs which the first Respondent, Sardar Trading Company, got registered on the 13th of November, 1961. Thakur Dass died during the pendency of this petition and his name was struck off from the array of parties.

(2.) BOTH the Petitioner firm and the first Respondent, manufacturer shoulder/pads which are used for padding in the tailoring of coats, and there is hardly anything in the finished products to distinguish one from the other. The label of the Petitioner's pad is styled as:

(3.) "Design" is defined in Sub -section (5) of Section 2 of the Act to mean "only the features of shape, configuration, pattern or ornament applied to any article by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical advice, and does not include any trade mark as defined in Section 2(1)(u) of the Trade and Merchandise Marks Act, 1958 (43 of 1958):" It is necessary also to notice the definition of "article" in sub -section (2) of Section 2 of the Act". Article "means" any article of manufacture and any substance artificial or natural, or partly artificial and partly natural:" Part II of the Act provides the machinery for registration of designs and under Sub -section (I) of Section 43 "The Controller may, on the application of any person claiming to be the proprietor of any new or original design not previously published in India, register the design under this part." Section 51 -A, under which this application is moved, says that: