Page 48 - A&A Patents&Design Rewind-2016

the Appellants were found to be untenable and the http://judgmenthck.kar.nic.in/judgmentsdsp/
temporary injunction was maintained. bitstream/123456789/132122/1/MFA3009-16-14-
The order of the Appellate Court can be accessed 09-2016.pdf
at:-

DIFFERENCE IN ANGLE NOT SIGNIFICANT TO

DEFEAT AN OTHERWISE GOOD CLAIM
The Plaintiff (Mandev Tubes Pvt. Ltd.) filed a
suit to protect its registered Design (Design by either side and the Plaintiff has claimed
registration number 224751), alleging exclusivity to no functional element.
- The Defendants’ claim that the design was

infringement and passing off of their design by the disclosed to the public by the Plaintiff by way

Defendants (Kalpesh R. Jain and Ors.). The Plaintiff of advertisement lacks credibility as there is no

alleged that the three Defendants who were all name of any magazine provided and no date

known to the Plaintiff being a former transporter of any such alleged advertisement is apparent.

for the Plaintiff’s goods (Defendant No. 1) and In fact, there are no particulars whatsoever, of

Plaintiff’s erstwhile employees (Defendants Nos. 2 the advertisement. Further, there is no other

and 3) have infringed the Plaintiff’s registered design material to show prior publication or lack of

in relation to copper tubes. novelty. The Defendants chose to not place

any material before the Court in this regard.

The originality and novelty of the registered copper - Given the fact that all the Defendants had a

tube design was claimed to be in the expanded bell connection with the Plaintiff and that Defendants

shape of each of the tubes. The design was claimed Nos. 2 and 3 worked for the Plaintiff till after

to be purely aesthetic. the registration of the Plaintiff’s design in the

suit, it is impossible to believe at this stage that

The Defendants, on the other hand, argued that the infringing product is the Defendants’ “brain

the said design was disclosed to the public including child” or their “hard, creative work”. The

other manufactures, by way of advertisement in a Defendants’ past association with the Plaintiff

magazine by the Plaintiff prior to the date of the weighs heavily against them when they enter

Design application in dispute. The Defendants also the market with so nearly an identical product.

claimed that the curvature of the bell-ending in the - As to the question of passing off and balance of

Plaintiff’s product is of 90 degrees while it is 45 convenience, the Court observed that by the

degrees in case of the Defendants’ product. time the Defendants claim to have entered the

market, the sales of the Plaintiff were already in

Upon consideration of the arguments of the excess of Rs. 4.31 crores.

Petitioner and the Respondents, the Court arrived

at the following conclusions:- Holding that prima facie it appears that the

Defendants have done nothing but pirated the

- The difference in angle is not significant. The Plaintiff’s design and that the balance of convenience

Court held that such minute differentiations favours the Plaintiff to whom undoubtedly

are not to be reckoned as sufficient to defeat irretrievable prejudice will be caused if an injunction

an otherwise good claim. Further, the extent of is refused, the Court granted interim relief to the

copying is almost complete as it extends even Plaintiff.

to the special yellow caps specially designed to

fit the end of the tubes. The decision can be accessed at:-

- There is no functionality of the design claimed https://indiankanoon.org/doc/45075169/

48 | Patents & Design