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1 - 7 of 7 (0.27 seconds)Metro Plastic Industries (Regd) vs M/S. Galaxy Footwear New Delhi on 10 December, 1999
Prior
publication obviously is a matter of fact and not a matter of law and
therefore I cannot read the ratio of the judgment in the case of Metro Plastic
Industries (supra) so far as the facts on the aspect of prior publication in the
CS(OS) No. 2471/2012 Page 12 of 15
present case are concerned, when there is no evidence of prior publication of
the design which is the subject matter of specific design no. 235010.
The Code of Civil Procedure, 1908
S.C.Johnson & Son, Inc & Another vs Buchanan Group Pty Ltd. & Ors. on 8 December, 2009
Hence these bills cannot be considered as document evidencing prior
sale/use of the article bearing impugned registered design.
Another contention of petitioner was that the impugned design is mere
mechanical device and hence is not a design as defined under clause (d) of
Section 2 of the Act. It was stated that as per submission of respondent in
Para 9 of page 7 of the counter statement as well as Para 7 of the affidavit,
the impugned design is functional. A mere mechanical device is a shape in
which all the features are dictated solely by the function or functions which
the article has to perform [Amp Inc vs. Utilux Pty. Ltd 1972 RPC 103]. At
the same time, it is observed from the petitioner's evidences that there are
variety of water jugs having distinctive features of shape and configuration.
The article of the impugned design is an article under Section 2(a) of the
Act. The article has certain design features of shape and configuration
applied to it. The article is not a mere mechanical device and the features of
the impugned design are not solely dictated by the function the article has to
perform. There is no bar as to being the impugned design under the
definition of 'design' as defined in clause (d) of Section 2 of the Act.
Upon consideration of the Statement of Case, Counter Statement,
evidences, and submissions of both the parties and after careful analysis of
the documents submitted by both the parties in the instant case as above, I
decide that the petitioner could not establish the grounds of prior
publication of the registered design no.235010 and therefore I decide that
the design no.235010 is new and original and registrable under the
provisions of the Act." (emphasis added)
Section 4 in The Designs Act, 2000 [Entire Act]
Section 11 in The Designs Act, 2000 [Entire Act]
Section 19 in The Designs Act, 2000 [Entire Act]
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