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manufactures of TMT bars and they are new in the market. The respondents are advertising their TMT bars with pattern "X" RIBS look alike as "YY RIB". The surface pattern of respondents TMT bars are exact copy of the petitioners "X" RIB pattern, thus, making the respondents TMT bars virtually identical. It is also stated by the petitioner that the respondents had been using an elliptical helix pattern/shape on their TMT bars and later switched over to "X RIB" pattern describing the said pattern as "YY" ribbed. Thus, the respondents have dishonestly and in slavish manner copied the surface pattern of the petitioner on the TMT bars manufactured by them only to create confusion in the minds of the customers of the petitioner and thereby causing substantial financial loss to it.

Learned Advocate for the petitioner submits that the petitioner company for the first time conceived the idea of X rib design of TMT bars. X rib surface pattern has become popular by virtue of advertisement in the media by the petitioner. From the very beginning of embossing X rib pattern on the surface of TMT bar, the said surface pattern has earned tremendous goodwill and reputation in the market. The petitioner also published advertisement giving caution to other manufacturers and consumers for not copying or imitating X rib bar on their products. Learned Advocate for the petitioner draws my attention to the advertisements of SRMB TMT bars with X rib pattern published in the newspapers and invoice dated 28th January, 2005, 28th March, 2004, 2nd March, 2006 etc. to establish that the petitioner has been manufacturing X ribbed TMT bars since 2003-04 or even prior to that. According to the learned Advocate for the petitioner, SRMB TMT bar with surface design became the integral part of the trademark of the petitioner. The petitioner made an application dated 11th August, 2016 for registration of 3D mark on SRMB "X ribs" device. From the said application it would be ascertained that the petitioner's brand has registered trademark "SRMB 500"(label)"and "X ribs(word)". Though the 3D trademark of X pattern has not been registered as yet, but the petitioner is entitled to get protection in respect of user of X pattern on the TMT bars as prior user of the said pattern.

The petitioner next relies upon a decision of the Delhi High Court in the case of Apollo Tyres Ltd. Vs. Pioneer Trading Corporation & Anr. reported in 2017 SCC online Del 9825. In the aforesaid decision, it is held by the Delhi High Court that trade pattern adopted by different manufacturers in respect of their tyres become one of the primary source identifiers apart from their brand names. The manner in which tyres are displayed in the course of advertising also shows that the trade patterns adopted by different manufacturers are permanently displayed along with the brand name of manufacturers. The face of the tyre, i.e. it is trade pattern is what is displayed by all the manufacturers, while advertising their tyres in publications, pamphlets etc. Therefore, the trade pattern of the tyres manufactured by a particular brand cannot be imitated by other manufacturer. It is further submitted by the learned Advocate for the petitioner that the defendants may plead that the surface pattern on TMT bars are designs and since the said surface pattern has not been registered as a design by the plaintiff, the plaintiff has lost its exclusive right over the said decision on question. In Apollo Tyres Ltd.(Supra) the Delhi High Court replied to such objection in the following words.

surface pattern for its TMT bars" as its unique and distinctive design. Since the said surface pattern "X" is not registered under the Designs Act, 2000, the petitioner cannot get any protection either under the Trademarks Act or under the Designs Act. Learned senior Counsel on behalf of the defendants further submits that the petitioner did acquire registration of the said design "X" for the article "Rod for Re enforcing Concrete" on 4th April, 2003, but the said registration was subsequently cancelled vide order dated 3rd February, 2010 on the basis of an application filed by another Company, viz., M/S. Tribeni Industries Pvt. Ltd. on the ground that the said distinctive design was already published in India or in other country prior to the date of registration. Therefore, the petitioner used to use the said "X" mark as design on the surface of TMT bar during the period between 4th April, 2003 and 3rd February, 2010 on the basis of a dishonest registration. After the said registration was cancelled, the petitioner has prayed for registration of three dimensional trademark of the same "X" pattern over its TMT bar on 8th November, 2016. According to the learned senior Advocate for the defendants 'X RIBS(word)' trademark does not give the petitioner monopoly on the design. The petitioner has been trying to project surface pattern on the TMT bar manufactured by it as a trademark, which he cannot in view of the fact that the petitioner previously used the said mark as registered design. In other words, the petitioner previously elected to use the mark as design under the Designs Act and again, it is not permissible to describe and use the said mark as unregistered trademark only to claim perpetual monopoly on the said mark.