PARESH AJITKUMAR KAPOOR Vs. TOMAR ENTERPRISES

JUDGEMENT

(1.) At the request and consent of the respective learned Senior Counsels for the parties, the matter has been heard on the application filed by the plaintiffs under Order 39 Rule 1 and 2 CPC read with Sec. 151 CPC.

(2.) Brief facts which are relevant for disposal of the application filed by the plaintiffs under Order 39 Rule 1 and 2 CPC read with Sec. 151 CPC are that a suit came to be filed by the plaintiffs for infringement and perpetual injunction under Sec. 22 of the Designs Act, 2000 (hereinafter to be referred as the Act of 2000) against the defendants in the Court of District and Sessions Judge, Jaipur Metro-II, Jaipur along with the application under Order 39 Rule 1 and 2 CPC read with Sec. 151 CPC seeking temporary injunction during pendency of the said suit. According to the plaintiffs, they are engaged in the activity of research and development of novel and unique designs of air cooler and also in the business of manufacturing, marketing, selling and exporting the air coolers across the country and to several foreign countries also. The plaintiffs applied for registration of design of their cooler with the Controller General of Patent, Design and Trademark (hereinafter to be referred as Controller) on 27/12/2010. The said design was duly registered by the Controller and originally it was for ten years and as per the provisions of the Act of 2000, said registered design, according to the plaintiffs, is deemed to have been extended upto 26/12/2025. It was further stated by the plaintiffs in the suit that after registration of the said design, they started manufacturing, selling and exporting the products of their air cooler in the market extensively and continuously. The details of model name and number have been mentioned in para no.13 of suit, which are as under :-

(3.) Learned Senior Counsel appearing for the plaintiffs submitted that in the suit as well as in the temporary injunction application they have specifically mentioned that the defendants are copying plaintiffs' registered design of the cooler and selling the same in the market. Learned Senior Counsel further submits that along with the temporary injunction application they have also placed on record copies of the photographs of the cooler/products manufactured by the plaintiffs as well as by the defendants and submitted that a perusal of these photographs clearly shows that the defendants have copied the registered design of the plaintiffs. Learned Senior Counsel further submits that both the photographs if are seen together even with naked eyes, they seem to be same and thus this act of the defendants amounts to infringement of plaintiffs' registered design. Learned Senior Counsel further submits that it is a case of clever fraudulent and imitation. Learned Senior Counsel further submits that some of the employees working with the plaintiffs have been engaged by the defendants for copying their design and in this regard specific pleadings have been made by the plaintiffs in the temporary injunction application. Learned Senior Counsel further submits that the defendants have not denied the fact regarding selling the cooler, however their objection is that their design is different than that of the plaintiffs. Learned Senior Counsel further submits that the suit for cancellation of the design is maintainable if the defendants have also registered their design. Learned Senior Counsel further submits that upon perusal of the pleadings made by the plaintiffs in the temporary injunction application, a strong prima facie case is made out in favour of the plaintiffs and on the contrary the defendants have failed to show any prima facie case in their favour as they are admitting that they are manufacturing the same type of cooler though stated that their design is different. Learned Senior Counsel further submitted that reply submitted on behalf of the defendants clearly shows that from the year 2017-18 onwards the sale of the defendants' coolers became very high despite earlier years. Learned Senior Counsel further submitted that the plaintiffs have suffered irreparable loss as the defendants are continuously selling the cooler in the market after copying the plaintiffs' registered design and therefore prayed for restraining the defendants from manufacturing, distributing and selling the coolers of plaintiffs' registered design.