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12. He submitted that his client in the first case is a manufacturer of plastic utility products. The process involved is the preparation of the drawing which is called the first stage which then leads to the production of mould/engraving which is the second stage and from the said mould/engraving, the final product emerges, which is the third stage.

13. As far as the second case of Mattel is concerned, he submitted that the stage of mould/engraving is not there and straightaway from the drawing the product emerges. He further submitted that a design is related to aesthetics and visual features and utility part of the product relates to, at best, the patent and not the design law. He submitted that Section 14(c) of the Copyright Act defines the rights of an owner of a Copyright in an artistic work within the meaning of Copyright Act. By placing reliance on Section 14(c) (i), he submitted that such a copyright owner has a right to reproduce the work either in two-dimensional or three-dimensional products. Section 2(c) which defines ‗artistic works' covered specifically both drawings and engravings. The offending product of the respondent, was made by a process of reverse engineering which would involve the taking up of the product, creating a mould from it and finally a drawing. That the moulds and the drawings of the appellant are copyright protectable under the Copyright Act and could not be, and are incapable of forming part of the design registration. Inter alia he submitted that the mould and the drawing do not appeal to the eye as required under Section 2(d) of the Designs Act. Reliance was placed on Section 15(1) read with Section 2(c) of the Copyright Act to submit that upon the registration of a design the loss of copyright is restricted to the stage III i.e. the eventual product. Section 15(1) does not contemplate stages I and II, that is, the drawing and the mould not being protected under the Copyright Act. Section 15 of the Copyright Act in its entirety does not affect stages I and II and will apply to only those cases, which are design registrable and copyright registrable. That in so far as Section 15 (1) is concerned, the copyright is lost immediately upon the registration under the Designs Act and the exclusion under S.15(2) covers the cases which are registrable under the Designs Act and the product is produced 50 times. Reference was made to Section 2(d) of the Designs Act and reliance was placed upon a judgment in Ahuja Intellectual Property Cases Vol.3 NO.5, August 1998 Smithkine Beecham Consumer Health Care vs. Eden Cosmetics Ltd.

k. Once the ‗design' as a concept or as a variant is conspicuous by its absence from the definition of ‗artistic work' under the Copyright Act, it is clear that a design cannot be de-structured or de-constructed by reverse engineering or otherwise to be an ‗artistic work' within the meaning of Copyright Act.

l. However, an artistic work can be lifted to the level of design under Section 15(2) of the Copyright Act. This is evident from the definition of ‗design' under the Designs Act which removes all doubts and possibilities of overlapping or an equivocal interpretation of the expression ‗design' in the context of an ‗artistic work' and excludes those artistic works from its ambit which has not been (a) created or (b) used as a design and then proceeds to confer copyright on such artistic works under Chapter III of the Designs Act.

39. Shri Arun Jaitley, the learned Senior Counsel appearing for the appellant in FAO (OS) No.326/2007 titled as M/s Dart Industries Inc. & Anr. v. M/s Techno Plast & Ors. had only made submissions in the present appeal in respect of Section 15 of the Copyright Act to the extent it could affect the appeal filed by his clients. He had advanced a very attractive argument as to the three stages of processes leading to the eventual designed product. He submitted that the first stage is of the preparation of drawing or artistic work which leads to the production of mould/engraving which is the second stage and such mould/engraving leads to the final commercially marketable product, which is the third stage. He has also submitted that the products of the respondent were made by the process of reverse engineering starting from the final product leading to the second stage of creating a moulding, and from it a final drawing. His plea was based upon the premises that the mould and the drawing of the appellant are copyright protectable under the Copyright Act and cannot be or are incapable of forming part of the design registration regime. It is submitted that the product of the respondent involves the copying of the mould/drawing of the appellant.