Preethi Kitchen Appliances Pvt. Ltd vs Baghyaa Home Appliances
5(xxxi) In this regard, it is also necessary to look at the judgment of Lord Farwell in the celebrated Dunlop company case, which I have referred to supra. I have also set out in detail the reasons why I am referring to an English law in this judgment. Lord Farwell has very elucidatively laid down that in a design infringement action, when we are taking about eye, it is the eye of the Judge. I went a step further. I examined it from the eye of a common man too. I examined it from the perspective of a man who may or may not be discerning. I have no hesitation in coming to the conclusion that the second defendant's products suffer from the vice of what is being referred to as 'sameness' even to the eye of a person who may not be very discerning. I had undertaken this exercise in tune with some of the judgments cited at the bar by the learned senior counsel for the second defendant. One such judgment is Britannia Industries Ltd. vs Sara Lee Bakery reported in AIR 2000 Mad 497. My attention was drawn to Paragraphs 38 and 41, which read as follows: