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Mr. Sayantan Basu, learned counsel representing the respondent has opposed the prayer for injunction. Mr. Basu submits that the respondent has no connection with Prime Gold International Limited. In fact, Prime Gold International Limited is seeking to review the order passed by the learned Single Judge in CS(COMM) 672/2018, IA No.3014/2018. Mr. Basu has heavily emphasised on the findings of the Design Controller by which the registration of the design was revoked. It is submitted that once the design is in the public domain, it loses its inherent distinctive character and is open for use by the public in general. It is submitted that the judgment of the Delhi High Court is not binding on the defendant as the defendant is not a franchisee of Prime Gold International Limited. Moreover, the surface pattern as shown in the TMT bars and rods are common to the trade and are being used by other manufacturers as well. The X-ribs adds to functionality of the said TMT rods and bars and no one can claim an exclusive right over such pattern.

On consideration of the materials on record at this interim stage, I am of the view that the plaintiff has been able to make out a strong prima facie case for an order of injunction. The plaintiff has been able to show nexus between Prime Gold International Ltd. and the Defendant in the suit. Even prior to the institution of the suit at Delhi, ceased and desist notice was issued to the defendant. The defendant was aware that the suit has been instituted against Prime Gold International Ltd. and another for passing off its product as that of the plaintiff by applying the same surface pattern over which the plaintiff has claimed a superior right by long, extensive and continuous use. The learned Single Judge of the Delhi High Court on consideration of similar objections has passed an interim order as recorded earlier. The revocation of the registered design on the ground of prior publication in the instant case does not defeat the right of the plaintiff to seek an order of injunction on the strength of trade dress and passing off as the considerations under the two Acts are different. In fact, the registered design of the plaintiff was revoked on the ground the plaintiff prior to the application for registration of its design had published such design by way of advertisements and sold its products prior to the date of the application for registration of the design. The ground for revocation was not that some other entities have published the same and/or similar design prior to the plaintiff's claim of novelty of such design. Moreover, as held in Apollo Tyres [supra], the non-registration of the design contained in the trade pattern does not take away the rights of the person who uses the said design contained in the trade pattern as a trademark to sue for passing off. The document at page 58 of the petition discloses that the defendant was selling the TMT Bar of Prime Gold International Ltd. which prima facie establishes that they were franchisee of Prime Gold International Ltd.. In view of the prima facie finding that X-Ribs marks on the TNT bar of the defendant are ex facie identical and slavish imitation of the plaintiff's trade dress and pattern, there shall be an order of injunction restraining the defendant from manufacturing, marketing, using and/or selling TMT bars and/or rods by applying the pattern of X- Ribs upon and/or in relation to the TMT bars and rods as depicted in Annexure-A to the plaint. This interim order shall continue for a period of eight weeks or until further order whichever is earlier.