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1 - 10 of 12 (0.81 seconds)Section 19 in The Designs Act, 2000 [Entire Act]
Whirlpool Of India Ltd vs Videocon Industries Ltd on 27 May, 2014
Before I come to deal with the Designs themselves, I would just say one word or two with regard to the law on this matter, and for that purpose I must look at the Act. The first section of the Act to which I desire to refer is the definition Section, Section 93. In that Section the word design is defined in these terms: 'Design' means only the feature of shape, configuration, pattern or ornament applied to any article by any industrial process or means, whether manual, mechanical, or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye, I need not read the rest of that definition.
I want to say one word with regard to Section 60. Section 60, so far as it is relevant for my purpose is in these terms: During the existence of copyright in any design it shall not be lawful for any person (a) for the purposes of sale to apply or cause to be applied to any article in any class of goods in which the design is registered the design or any fraudulent or obvious imitation thereof, except with the licence or written consent of the registered proprietor, or to do anything with a view to enable the design to be so applied. There are three things there which a member of the public may not do with regard to a registered design. In the first place, he may not apply, to any article in the class of goods in which the design is registered the design itself. He may not, therefore, take the registered design and use it bodily for the purpose of an article of his own manufacture. That of course is not suggested in this case.
5(xvi) The second reason for me to still look to Dunlop Company Case is, the principles culled out in Dunlop Company case has been consistently and continuously followed by the Indian Courts in a long line of authorities in J.N.Electricals (India) V. President Electricals of Delhi High Court reported in ILR (1980) 1 Delhi 215, Castrol India Ltd., V. Tide Water Oil Co.(I) Ltd., of Calcutta High Court reported in 1996 PTC (16) 202, Alert India Vs. Naveen Plastics of Delhi High Court reported in 1997 PTC (17) 15, Dabur V. Amit Jain of Delhi High Court reported in 2009 (39) PTC 104 and finally Darts Industries case of the Madras High Court was as late as in 2017 i.e., MIPR 2017(3) 0158.
J.N. Electricals (India) vs President Electricals on 20 August, 1979
Before I come to deal with the Designs themselves, I would just say one word or two with regard to the law on this matter, and for that purpose I must look at the Act. The first section of the Act to which I desire to refer is the definition Section, Section 93. In that Section the word design is defined in these terms: 'Design' means only the feature of shape, configuration, pattern or ornament applied to any article by any industrial process or means, whether manual, mechanical, or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye, I need not read the rest of that definition.
I want to say one word with regard to Section 60. Section 60, so far as it is relevant for my purpose is in these terms: During the existence of copyright in any design it shall not be lawful for any person (a) for the purposes of sale to apply or cause to be applied to any article in any class of goods in which the design is registered the design or any fraudulent or obvious imitation thereof, except with the licence or written consent of the registered proprietor, or to do anything with a view to enable the design to be so applied. There are three things there which a member of the public may not do with regard to a registered design. In the first place, he may not apply, to any article in the class of goods in which the design is registered the design itself. He may not, therefore, take the registered design and use it bodily for the purpose of an article of his own manufacture. That of course is not suggested in this case.
5(xvi) The second reason for me to still look to Dunlop Company Case is, the principles culled out in Dunlop Company case has been consistently and continuously followed by the Indian Courts in a long line of authorities in J.N.Electricals (India) V. President Electricals of Delhi High Court reported in ILR (1980) 1 Delhi 215, Castrol India Ltd., V. Tide Water Oil Co.(I) Ltd., of Calcutta High Court reported in 1996 PTC (16) 202, Alert India Vs. Naveen Plastics of Delhi High Court reported in 1997 PTC (17) 15, Dabur V. Amit Jain of Delhi High Court reported in 2009 (39) PTC 104 and finally Darts Industries case of the Madras High Court was as late as in 2017 i.e., MIPR 2017(3) 0158.
Britannia Industries Ltd. vs Sara Lee Bakery on 14 July, 2000
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:
Harish Chhabra vs Bajaj Electricals Ltd. And Anr. on 24 June, 2005
41. One of the tests to find out the identity or sameness of the design is to find whether there are substantial differences between the design subsequently registered and the design which was earlier registered. These differences cannot be based on purely subjective or utilitarian or aesthetic considerations. The differences must be objective in its essential features. A general view of the features of both the designs should be looked into to find out if the one design is as good as the other, and the conclusion is to be arrived at by visual examination of the two things. Similarity of device in external appearance may be a relevant factor in considering the substantial differences between the two but is certainly not a determining factor.
5(xxxii) Another judgment of the Bombay High Court in Harish Chhabra Vs. Bajaj Electricals Ltd., and another reported in 2005(3) Mh.L.J 962 was placed before me to say that the product as a whole has to be compared. A portion of paragraph No.5 of this judgment was relied on by learned senior counsel Mr.P.S.Raman. That portion of Paragraph 5 reads as follows:
The Code of Civil Procedure, 1908
The Patents Act, 1970
Micolube India Limited vs Rakesh Kumar Trading As Saurabh ... on 15 May, 2013
5(xxxvi) It is necessary to record the fact that the issue of whether a design infringement action and passing off action can be combined in one suit was brought up. In this regard, the aforesaid Full Bench judgment of the Delhi High Court i.e., Micolube case returned as an answer to one of the references, that it cannot be done. However, as I am deciding the interlocutory applications, I am not expressing any opinion on the same.