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5. It is alleged that the defendants have copied the plaintiff's design for their products i.e. food grade plastic storage containers and in this manner infringed the plaintiff's designs in these products. It is the allegation of the plaintiffs that the designs of all the aforesaid products of the defendants are identical to the designs of the products of the plaintiffs. According to the plaintiffs, this act on the part of the defendants is illegal and defendants are liable to be restrained from manufacturing and marketing these products as it amounts to : (a) design infringement under Section 20 of the Designs Act; (b) copyright infringement under Section 55 of the Copyright Act; (c) defendants are passing off their goods as that of the plaintiffs by copying trade address and trade name etc. which is confusing the similar to that of the plaintiffs goods. Therefore passing off action in injunction is also maintainable; (d) The defendants have copied the designs by adopting reverse engineering methodology; (e) the impugned act of the defendants also amounts to unfair competition and unfair trade practices which also entitles the plaintiffs to claim injunction against the defendants.

42. No doubt, the plaintiff has tried to argue that for creating the same designs, the defendant would have applied the technique of 'reverse engineering' inasmuch as striking resemblance to the Tupperware Products could have been achieved by the defendants by circumventing the tedious and lengthy process used for manufacture of the Tupperware Products by using computer techniques possibly by 2D or 3D scanning. This is a matter which would require evidence. May be on the basis of evidence led ultimately plaintiff is successful in showing that there is a copyright in the product drawings and the defendants have copied the said drawings thereby violating the copyright rights in creating their own products striking similar to the Tupperward Products. However, prima facie, it seems that once the drawings are made for creating the ultimate product design, the copyright in the said drawings cannot be claimed under the Copyright Act. May be this is the reason that Section 15 of the Copyright Act provides that once a design is registered under the Designs Act, copyright therein shall not subsist. Such a copyright in any design ceases even when any article to which the design has been applied has been reproduced more than 50 times by an industrial process by the owner of the copyright. The underlying message is that copyright in an industrial design is governed by the Designs Act, 2000. If a design is registered under that Act it is not legible for protection under the Copyright Act. In such cases after the design is registered under the Designs Act, the protection given is not copyright protection but a true monopoly based on statute inasmuch as such designs were never protected by the common law. Exception may be in those cases where copyright had come into existence in respect of artistic drawings and subsequently those drawings were used as models or patterns to be multiplied by any industrial process. There, if the drawings became capable of registration as a design it would not result in copyright being fortified. See Warner Brothers v. Roadrunner 1988 FSR 292 However, if the intended industrial use of the work was contemporaneous with its coming into existence, Section 15 of the Copyright Act would apply. I may hasten to clarify that it is not suggested that if any design is registered, copyright under no circumstance exist in the drawings. Section 15 lays down that on registration of a design under the Designs Act, the copyright shall not subsist in that design and not in the drawings. Therefore, it is possible that when the moulded plastic article of novel shape is made from a working drawing, as in the instant case, the drawing may qualify as an original work entitled to copyright protection and, at the same time, a registered design for the shape of the article would be protected under the Designs Act. If an unauthorized copy is made of the article, it may constitute an indirect copy of the drawing and therefore may infringe the copyright.