Appellants appealed against an order appointing a receiver and granting an injunction in a suit for infringement of registered designs. The High Court dismissed the appeal, upholding the Single Judge's finding that appellants lacked standing for one design and failed to prove lack of novelty for the other.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 256 of 2007
IN
NOTICE OF MOTION NO.1894 OF 2005
IN
SUIT NO. 1713 OF 2005
Vaibhav Enterprises & Anr. .. Appellants
versus
Suresh Maruti More .. Respondent
Mr.K.D. Shah for the appellant.
Ms.Swapnali Rane for the respondent.
CORAM : R.M.S. KHANDEPARKAR
AND D.G.KARNIK, JJ
DATED : 9th April 2007.
P.C.:
1. The appellants challenge the order dated 9th
March 2007 passed in Notice of Motion no.1894 of 2005
in Suit no.1713 of 2005. By the impugned order,
notice of motion taken out by the respondent has been
made absolute in terms of prayer clauses (a) and (b).
The prayer clauses (a) and (b) read thus:
(a) that pending the hearing and final
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disposal of the suit the defendants by
themselves, their partners, servants,
agents and dealers be restrained by an
order and injunction of this Hon’ble Court
from infringing the Plaintiffs registered
design nos.183358 and 180432 by using in
relation to their goods as shown in
Exhibit H and I annexed to the Plaint or
any other design deceptively similar to
that manufactured by the Plaintiffs.
(b) that pending the hearing and final
disposal of the suit the Court Receiver,
High Court, Bombay be appointed under
Order XL, Rule 1 of the Code of Civil
Procedure, Code, 1908, as the receiver of
the defendants goods which are the exact
imitation to that of the Plaintiffs as
Exhibit C and D annexed to Plaint, with
all powers to enter in the premises of the
defendants and/or their agents
distributors, stockiest and/or dealers at
any time day or night without notice to
the Defendants and with the help of the
police if necessary, to search, seize and
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take charges, possession and control the
imitated/infringed goods at Exhibits H and
I annexed to Plaint as well as machinery,
dyes and moulds used for the manufacturing
activity and in possession of the
defendants and/or their agents,
distributors and stockiest and/or
dealers."
2. The findings arrived at by the learned Single
Judge clearly disclose that in relation to design
no.180432, the defence sought to be raised by the
appellants was that they had acquired copy-right in
that design by getting their design registered. In
case of design no.183358, the defence was in fact that
there was no novelty in that design and that the
design is commonly used in the market.
3. The learned Single Judge,on consideration of
the materials on record, has found that the
registration in relation to design no.180432 is in the
name of Vithal Soma Gawde, who is father of the
appellant no.2 herein. Undisputedly, the father of
the appellant no.2 is living. Consequently, the
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appellants are not entitled to claim any benefit under
the said registration certificate which was granted in
favour of the father of the appellant no.2 and
therefore, the learned Single Judge has denied the
relief asked for by the appellants.
4. As regards the design no.183358, the learned
Single Judge has held that the appellants have failed
to produce any material on record to show that for
similar seals manufactured by the persons whose names
are disclosed in the affidavit are either freely
available in the market or anything is disclosed as
regards the volume of business done by the parties in
that regard.
5. As regards the failure on the part of the
appellants to produce any evidence in support of the
contention about the absence of novelty in relation to
design no.183358, it was sought to be contended on
behalf of the appellants that the necessary material
was attempted to be shown to the learned Single Judge.
However, perusal of the affidavit filed clearly
disclose that though the appellants in no uncertain
terms, had sought leave to rely upon the materials in
relation to the contention about the absence of
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novelty in relation to the said design, actually no
material was produced on record. The Learned advocate
for the appellants has admitted that the appellants
did not produce any explanation about the absence of
novelty dealing with any design. Obviously, no fault
can be found in the observations made by the learned
Single Judge in relation to the failure on the part of
the appellant to establish absence of novelty in
relation to design no.183358.
6. Similarly, it is not in dispute that in
relation to design no.180432, the defence of
registration in favour of such design claimed by the
appellant is in favour of his father who is living and
being so, the findings arrived at by the learned
Single Judge about the non entitlement of the
appellants to claim benefit under the said design
cannot be found fault with.
7. For the reasons stated above, we do not find
any case being made out for interference in the
impugned order and hence the appeal fails and is
dismissed.
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(R.M.S. KHANDEPARKAR, J)
(D.G. KARNIK, J)
3 issues framed by the court
Whether the learned Single Judge correctly denied relief for infringement of design nos. 180432 and 183358.
Whether appellants were entitled to claim benefits under design registration granted to appellant no. 2's father.
Whether appellants established lack of novelty for design no. 183358 due to market availability.
Colour shows how this judgement treated each authority
Not citedReferred
1 provisions across 1 enactments
Vaibhav Enterprises & Anr.
Suresh Maruti More
R.M.S. KHANDEPARKAR
D.G. KARNIK
As recorded by the court registry
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