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17. By this time, the Defendants had prints of the photographs taken by the Court Receiver's representative. These were given to the Defendants on 6th/7th May 2014. No affidavit was filed setting out the case attempted to be argued on 16th May 2014, though ten days had since passed. Kathawalla, J saw no reason not to accept the Court Receiver's representative's photographs. He found, as a matter of fact, that it was established that the Plaintiff's products were in a dismantled condition in the Defendants' premises at the time of the Court Receiver's representative's site visit and that this was entirely uncontroverted. Concluding prima facie that the Plaintiff's case of reverse engineering was established, Kathawalla, J refused to vacate the ad-interim order. The Notice of Motion was then placed for final hearing.

26. What Mr. Grover contends is that the drawings and the moulds, in which too the Plaintiff claims copyright, are 'intermediaries' in the making of the final product. That is a submission without discernible direction; it takes us nowhere. A man may fashion a tangible thing from a sketch, even a doodle. That 20 of 37 NM684-2014-S427-2014-F.DOC does not rob the sketch of copyright protection. Mr. Grover's attempts to distance himself from Nirma, by saying that was a case of label, not an article, and from Indiana Gratings, saying that was a case of theft by an ex-employee are unpersuasive. Indiana Gratings, in particular, seems to be on all fours in its statement of the law, and at no great remove on facts. Indeed that was a case of theft, and this is a case of reverse engineering, a sophisticated form of stealing. A distinction such as Mr. Grover seeks cannot be drawn only on the basis of the degree or extent of illegality.

27. Mr. Grover's next submission that the drawings are not such as can be used to make a mould, essential to the manufacturing process, is not one that commends itself either. These are technical and engineering men. They can, from drawings, take the next necessary steps in production; and if, as they have done here, they should choose to dismantle a competitor's product and work backward from there, it is, I would imagine, no very difficult thing to prepare a mould. There is no limit to what a person may do with a physical object: he may use it to create something else entirely, or he may take it apart to see how it is made, and how each of its constituent parts are made, and then draw up plans for making more such parts and objects himself, something the Defendants appear, prima facie, to have done. What can be done with an artefact cannot dictate whether a representation of an idea of that idea, one perhaps with no appeal, is or is not an artistic work. The very definition of 'design' tells us this: A design is, and is only, the "features 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 or means, 21 of 37 NM684-2014-S427-2014-F.DOC whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye." Are the drawings or moulds "applied" to the finished products? Are they "features of shape, configuration, pattern, ornament or composition of lines or colours"? The "features of shape, configuration, pattern, ornament or composition" are aspects of the objects themselves. There is no copyright in the approximately rectangular shape of the flash lights, or the manner in which they are configured. There is a copyright in the initial mechanical or geometric drawings. A design also does not include any mode or principle of construction, and if the drawings describe this mode or this principle, they are, by definition, not designs, and not capable of registration as designs. The fact that it is impossible for the Defendants to reproduce the articles without reverse engineering them and preparing illicit drawings does not put the Plaintiff's drawings outside the protection of the Copyright Act.

35. Mr. Grover then relied on the decision of a learned single Judge of the Delhi High Court in M/s. Jagdamba Impex v M/s. Tristar Products Private Ltd.8 That case is entirely distinct from the one at hand. The teeth-cutting machine for making combs was found to be based on the very industrial drawings in which the plaintiffs asserted copyright. Moreover, and with the greatest respect, the attention of the learned single Judge was not drawn to Microfibres or to any of the cases discussed in it, though that decision bound the learned single Judge, or to the very many English decisions. Indiana Gratings was not considered either. I do not think I am bound by the Jagadamba Impex decision, even assuming it has any application to the present case, and I have the gravest misgivings about its universal applicability. Equally inapposite is the decision of another learned 2014 (59) PTC 149 (Del) 30 of 37 NM684-2014-S427-2014-F.DOC single Judge of the Delhi High Court in Polymer Papers Ltd. v Gurmit Singh and Ors.9 A very large number of reliefs were sought by the plaintiffs, who alleged that the defendants were hijacking their entire business. One of the reliefs sought was to restrain the defendants from using the plaintiffs' drawings etc. It was established that the plaintiffs in that case were themselves guilty of reverse engineering, in that they took apart certain products and then made production drawings based on that. This was the only context in which an issue arose under the Copyright Act and the Designs Act.