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3. In order to appreciate the controversy involved in the present appeal, a few facts may be dilated here. The respondent herein claimed to carry on business inter alia of manufacture and marketing of figured and wired glass sheets since 1981. The respondent claimed to be the originator of new and original industrial designs, applied by mechanical process to glass sheets. According to the respondent, the glass sheets have eye catching shape, configuration, ornamental patters, get up and colour shades and the same were registered and/or were awaiting registration as industrial designs under the Designs Act, 2000 (hereinafter to be referred to as the Act of 2000) and the Rules framed thereunder. For production of glass sheets of the design registered as Design No.190336, two rollers are required. The rollers are manufactured by M/s. Dorn Bausch Gravuren GMBH of Germany (hereinafter to be referred as the German Company). According to the respondent the rollers are not only used for manufacture of glass sheets, but for various other articles including plastic, rexin and leather. The respondent placed an order on the German Company for supply of the rollers for launching a design of figured glass with new and novel features not produced before by anyone else. On or about 29.10.2002 the respondent applied to the Controller of Patents and Designs under Section 51 of the Act of 2000 for registration of the said design in Class 25-01. The said design was duly registered on 5.11.2002 and was to remain valid for a period of 10 years from the date of its registration. The respondent claimed the exclusive copyright in India on the said design applied to glass sheets. It was claimed that no other person has any right to apply the said design to glass sheets as the respondent has exclusive right over the said design on the glass sheets. The respondent marketed the glass sheets of the said design under the name of Diamond Square and that became popular amongst the customers soon after its launch in the market. After registration of the said design the respondent issued a notice on 21.5.2003 cautioning other manufactures from infringing copyright of the respondent in respect of the said registered design. But in the meanwhile the appellant and its associate IAG Co.Ltd started imitating the said registered design, as a result thereof the respondent was constrained to file a suit being Civil Suit No.1 of 2004 against the appellant in the District Court of Mehsana. The respondent obtained a restraint order restraining IAG Co. Ltd. from infringing the copyright of the respondent against the said design. In order to counter-blast the suit, the appellant herein filed an application under Section 19 of the Act of 2000 before the Controller of Patents & Designs for cancellation of registration of Design No.190336 in the name of the respondent mainly on the ground that the design has already been previously published in India and abroad and on the ground that the design was not new or original. The appellant primarily relied on a catalogue of the German Company and letter dated 10.9.2003 of the German company addressed to M/s. IAG Co. Ltd. the holding company of the appellant stating that the said German Company had developed design No.2960-9010 in the year 1992 and the other evidence relied on by the appellant was a document downloaded from the internet from the official website of the Patent Office of the United Kingdom on 22.9.2004 which indicated that the same design had been registered in United Kingdom in the name of M/s.Vegla Vereinigte Glaswerke Gmbh sometime in 1992. As against this the respondent filed an affidavit stating that the German Company has been engaged in the manufacture of engraving rollers and no other goods and it was contended that the company was not engaged in manufacture of the goods other than engraving rollers. It was contended that the company never manufactured engraved glass sheets by using engraved rollers. The respondent also relied on the communication dated 4.3.2004 of the German company confirming that the embossing rollers covered by Design No.2950-910 had been sold to the respondent on condition that all user rights available in India under Indian laws would vest exclusively in the respondent and that the respondent would be entitled to exclusive user rights for at least five years. The German company was aware of the registration of the Design No.190331 and it had no objection to the design being marketed by the respondent herein. An affidavit was also filed by the Liaison Executive of the respondent company that he visited Germany and upon enquiry ascertained that M/s. Vegla Vereinigte Glaswerke Gmbh had never manufactured glass sheets of the design registered as Design No.2022468 in the United Kingdom. The respondent also objected to the admissibility of the materials alleged to have been downloaded from the United Kingdom Patent Office. It was also contended that in absence of corroborative evidence, such evidence cannot be tendered and it cannot be treated as admissible evidence. It was also contended that the German Company only manufactured rollers but did not produce glass-sheets prepared out of these rollers.

7. As mentioned above, the Assistant Controller primarily has taken into consideration the two evidence,
(i) that the design was registered way back 1992 by the German company on the roller to be used either on glass, or rexin or on leather, therefore it is not new and original and (ii) that the same design has been obtained in United Kingdom as is evident from the downloading of Patent website of the United Kingdom. On the basis of this two evidence, the Assistant Controller has held that the design which was registered on the application filed by the respondent herein was not a new and original. Therefore, on the application filed by the appellant, the Assistant Controller of Patents and Designs cancelled that design of the respondent.
8. Now, we shall examine to what extent the view taken by the Assistant Controller can be sustained and whether the view taken by learned Single Judge was correct or not. Now, coming to the first issue which has been framed by the Assistant Controller, the Assistant Controller found that M/s.Dornbusch Gravuren Gmbh, a German Company published a brochure bearing distinctive number 2960-910 for the first time on 10.9.1993 and the registered proprietor took the user's right and got it registered.

The Assistant Controller found that it is not the inventive ingenuity of the respondent and found that in order to register the design it should be new or original and the Assistant Controller found that there is insufficient evidence of originality and therefore, he came to the conclusion that the design is not a new and original one registered prior to the date of registration. Therefore, the question is whether the design is new and original. Section 4 which is couched in the negative terms, says that the design which is not a new or original then such design cannot be registered. Therefore, the question is the design which has been prepared by the German Company and which has been sold to the respondent which became the proprietor of it, is a new or original or not. In this connection, the burden was on the complainant to show that the design was not original or new. We have no hesitation in recording a finding that the burden was not discharged by the complainant. It only tried to prove on the basis of the letter of the German company that they produced the rollers and sold in market but it was nowhere mentioned that these rollers have been reproduced on the glass sheets by the German company or by any other company. The expression, "new or original" appearing in Section 4 means that the design which has been registered has not been published anywhere or it has been made known to the public. The expression, "new or original" means that it had been invented for the first time or it has not been reproduced by anyone. The respondent company purchased the rollers from the German company and got it registered with the registering authority that by these rollers they are going to produce the design on the glass sheets. Design has been defined in section 2(d) which means that a feature of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process. That means that a feature or a pattern which is registered with the registering authority for being produced on a particular article by any industrial process whether manual, mechanical or chemical or by any other means which appears in a finished article and which can be judged solely by eye appeal. The definition of design as defined in section 2(d) read with application for registration and rule 11 with form 1 makes it clear that the design which is registered is to be applied to any finished article which may be judged solely by eye appeal. A conjoined reading of these three provisions makes it clear that a particular shape or a particular configuration is to be registered which is sought to be produced on any article which will have visual appeal. Such design once it is registered then it cannot be pirated by any other person. But the question is whether it is new or original. In the present case, the complainant relied on the correspondence of the German company which produced the rollers and sold it to the respondent herein and it gave the proprietary right to the present respondent company. 'Proprietor' as defined in section 2 (j) of the Act means that any person who acquires the design or right to apply the design to any article, either exclusively of any other person or otherwise, means, in the respect and to the extent in and to which the design or right has been so acquired. Therefore, this right to reproduce this design on an article has been given by the German company to the respondent. But again the question is whether the complainant had discharged their burden to show that this design is not new or original. For this purpose, they only banked upon the letter of the German company which prepared these rollers and there is no evidence to show that the design which was reproduced on glass sheets was either produced by any other agency. Therefore, the expression that ' new or original' in this context has to be construed that whether this design has ever been reproduced by any other company on the glass sheet or not. There is no evidence whatsoever produced by the complainant either before the Assistant Controller or before any other forum to show that this very design which has been reproduced on the glass sheet was manufactured anywhere in the market in India or in United Kingdom. There is no evidence to show that these rollers which were manufactured or originally designed by the company was marketed by this company to be reproduced on glass sheets in India or even in United Kingdom. This proprietorship of this design was acquired by this respondent from the German company and there is no evidence on record to show that these rollers were used for designing them on the glass sheets in Germany or in India or in United Kingdom. What is required to be registered is a design which is sought to be reproduced on an article. This was the roller which was designed and if it is reproduced on an article it will give such visual feature to the design. No evidence was produced by the complainant before the Assistant Controller that anywhere in any part of the world or in India this design was reproduced on glass or it was registered anywhere in India or in any part of the world. The German company only manufactured the roller and this roller could have been used for bringing a particular design on the glass, rexin or leather but we are concerned here with the reproduction of the design from the roller on glass which has been registered before the registering authority. Therefore, this design which is to be reproduced on the article i.e. glass has been registered for the first time in India and the proprietary right was acquired from the German company. We have gone through the letter of the German company and it nowhere says that this was reproduced on a glass sheet. No evidence was produced by the complainant that this design was reproduced on a glass sheet in Germany or in India. The contents of the letter are very clear. It shows that it was designed in 1992 and was marketed in 1993. But there is no evidence to show that this design was reproduced on glass sheet any where in Germany. Section 4 clearly says that the Controller will only register a design on application made under Section 5 by the proprietor of any new or original design not previously published in any country and which is not contrary to public order or morality and it further says that this application shall be in a prescribed form and the prescribed form has been given in form 1. Form 1 clearly says that the design is to be applied. Relevant column of the form reads as under :