Page 49 - A&A Patents&Design Rewind-2016

INTENT AND CONDUCT WEIGH HEAVIER THAN

PRINCIPLES OF NATURAL JUSTICE

An appeal filed by Reckitt Benckiser Australia examine the Deponents of the affidavit-
Pty against an order of the Controller of in-opposition, and sought transfer of the
Patents and Designs cancelling its designs cancellation petition to the Delhi High Court

was dismissed by the Court in light of the conduct as the same issue was also pending before the

of the Appellant which showed its intention to delay Delhi High Court. An application requesting

the proceedings. The order of the Controller was transfer of cancellation proceedings from the

found in agreement with the principles of natural Patent Office to the High Court were also filed

justice. before Delhi High Court which were dismissed.

Reckitt Benckiser Australia Pty. Ltd. appealed

The facts of the case are as follows: - the order of the Controller refusing transfer

- In January 2005, Reckitt Benckiser Australia to the High Court which was converted to a

Pty. Ltd. filed a suit before the Delhi High Court civil miscellaneous petition on which orders

alleging infringement of registered Design Nos. were reserved. An appeal against the order

The Court held that the 184136 and 184137. of the Court refusing transfer of cancellation
insistence of the Appellant In said suit, one of the proceedings was dismissed as withdrawn.
to cross-examine is not Defendants, namely, - The Controller of Patents and Designs vide
bona fide. In spite of being Respondent No. 3, order dated 28th March 2008 cancelled
granted time, the Appellant filed a Counter-Claim registered design Nos. 184135, 184136 and
did not file written seeking cancellation of 184137 of the Appellants. An appeal was filed
submissions. the designs of Reckitt against the order of the Controller directing
Benckiser Australia Pty. design cancellation.
Ltd.

- Reckitt Benckiser Australia Pty. Ltd. thereafter, One of the primary grounds for filing of the appeal

filed cancellation petitions against the was that the Controller had proceeded with the main

Respondent No. 3’s design numbers 197811 matter without disposing all interim applications

and 197426, in view of its registered design and that the same is against the principles of natural

numbers 184136 and 184137. Respondent No. justice. The Appellant argued that the Appellant’s

3, in its counter-statement in the suit, pleaded rights were vitally affected as the cancellation order

that the designs though virtually identical was passed without considering the Appellant’s

were novel and that there had been no prior request for cross-examination.

publication of the same. Evidence affidavits

were also filed in this regard. In response to the Appellant’s arguments,

- One of the issues framed in proceedings before Respondent No. 3 argued that no evidence was filed

the Delhi High Court was whether design by the Appellant in their counter statement filed

numbers 184136 and 184137 were liable to be in response to the application seeking cancellation

cancelled. of registration of design Nos. 184135, 184136 and

- Respondent No. 3 also filed cancellation 184137 of the Appellant. No evidence was filed with

proceedings against registered Designs the Counter-Statement or objection. Although an

numbers 184136 and 184137 of Reckitt opportunity to cross-examine three witnesses was

Benckiser Australia Pty. Ltd. before the sought, no reason or ground was given for seeking

Controller of Patents and Designs. cross-examination of the Deponents. Respondent

- Reckitt Benckiser Australia Pty. Ltd. requested No. 3 also argued that the Appellants didn’t pursue

the Patent Office an opportunity to cross- the issue of the cross examination during the interim

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