Page 51 - A&A Patents&Design Rewind-2016

NO INJUNCTION UNDER COMMON LAW IF NO
DESIGN IS REGISTERED
OK Play India Limited sued eight Defendants
including Playwell Impex Private
Limited, its directors, distributor and
manufacturer for the relief of permanent injunction
restraining them from infringing the bundle of
Intellectual Property rights including Copyright
and Common law rights in Designs and/or from
passing off or indulging in acts of unfair competition
by manufacturing, distributing and selling products
No protection on the basis of identical
copyright can be given to the
Plaintiff at the interim stage as deceptively similar
to the products of
the Plaintiff and for
the copyright claimed by the ancillary reliefs.
Plaintiff in its drawings of the
design prepared in the course Vide an ex parte
of manufacture of the toys by ad interim order
an industrial process ceased as
soon as the toys as per the said dated 7th August
design were manufactured more
than 50 times by an industrial 2015, while
process.
issuing summons
of the suit, the
Defendants were
restrained from
manufacturing, selling, distributing, advertising
or dealing with the products that are identical/
deceptively similar to the Plaintiff’s products. The
order further appointed Court Commissioners to
visit the premises of the Defendants without notice,
to prepare an inventory of the impugned material
and to take into custody the infringing material
Subsequently, while deciding interim applications of
the Plaintiff for grant of interim relief and of the
Defendants for vacation of the ex parte order dated
7th August 2015, the Court found that the pleadings
and arguments of the Plaintiff show that the Plaintiff
while conceptualizing a new toy first prepared
a design having features of shape, configuration,
pattern, ornament and colour to appeal to children
to whom such toys are to be marketed. Thereafter,
the Plaintiff prepared a drawing for industrial
manufacture of the said design. The same shows
that the art work in which the Plaintiff is claiming
copyright is a step in manufacture of an article
as per the design conceived and cannot stand
independently from the design.
Considering the above, the Court held that;
- The toys in which the Plaintiff is claiming a
bundle of Intellectual Property rights were/
are registrable under the Designs Act and
the Plaintiff having not done so, cannot at the
interim stage injunct the Defendants from
manufacturing, selling and marketing identical
toys.
or - No protection on the basis of copyright can
be given to the Plaintiff at the interim stage
as the copyright claimed by the Plaintiff in its
drawings of the design prepared in the course
of manufacture of the toys by an industrial
process ceased as soon as the toys as per the
said design were manufactured more than 50
times by an industrial process.
- As far as the Common Law Rights asserted by
the Plaintiff are concerned, there was at that
moment nothing to show that there were no
toys of the design in which the Plaintiff claims
the copyright or that the Plaintiff is the author/
owner thereof.
Based on the above findings the Court dismissed
the application of the Plaintiff for interim relief
and allowed the applications of the Defendants
for vacation of the ex parte order dated 7th
August 2015. The allegedly infringing goods of the
Defendants seized by the Court Commissioners
were also ordered to be released to the Defendants.
The order can be accessed at:-
http://lobis.nic.in/ddir/dhc/RSE/
judgement/16-07-2016/RSE15072016S23552015.
pdf
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